Devendra Omprakash Kathuria, Pune V. Income -tax officer, Pune

ITA 1246/PUN/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 6237 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 18-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D GHOSH
• Assessee Lawyers: P S SHINGTE
• Keywords: Services rendered outside India; Competent authority
• Section: 142(1); 143(2); 48; 13; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO .1246 /PUN/201 7 / ASSESSMENT YEAR : 20 13 - 14 SHRI DEVENDRA OMPRAKASH KATHURIA, FLAT NO. 1 & 2, PLOT NO. 594, SECTOR 25, PRADHIKARAN NIGDI, PUNE - 411044 PAN : AIPPK2756E ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, (INTERNATIONAL TAXATION) - 2, PUNE / RESPONDENT ASSESSEE BY : SHRI P.S. SHINGTE REVENUE BY : SHRI D. GHOSH / DATE OF HEARING : 16 - 10 - 2019 / DATE OF PRONOUNCEMENT : 24 - 10 - 2019 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 14 - 02 - 2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 13, PUNE [CIT(A)] FOR ASSESSMENT YEAR 2013 - 14. 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER THE CIT(A) IS JUSTIFIED IN HOLDING THAT THE ASSESSEE IS RESIDENT CONSEQUENTLY DENYING THE CLAIM U/S. 90/91 IGNORING THE REMAND REPORT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 ITA NO. 1246/PUN/2017, A.Y. 2013 - 14 3. HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE NOTE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVES INCOME FRO M SALARY AND OTHER SOURCES. THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.77, 26,380/ - AND CLAIMED RELIEF U/S. 90/91 OF THE ACT. NOTICES U/S. 143(2) AND 142(1) WERE ISSUED AND FOR NO COMPLIANCE ON BEHALF OF THE ASSESSEE , THE ASSESSING OFFICER PROCEEDED TO COMPLETE ASSESSMENT U/S. 144 OF THE ACT DENYING CLAIM U/S. 90/91 OF THE ACT AND ACCEPT ED RETURN OF INCOME , VIDE T HIS ORDER DATED 30 - 03 - 2016. 4. THE ASSESSEE CHALLENGED THE ORDER OF ASSESSING OFFICER BEFORE THE CIT(A) AND CONTENDED THAT THE ASSESSEE COULD NOT COMPLY WITH THE NOTICES ISSUED BY THE ASSESSING OFFICER DUE TO HIS EMPLOYMENT OUTSIDE INDIA AND THERE WAS NO OPPORTUNITY FOR THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS . THE ASSESSEE FILED DOCUMENTS SUCH AS COPY OF PASSPORT, SA LARY SLIP S FOR EVERY MONTH, SUMMARY OF TOTAL SALARY AND COPY OF SEAMANS RECORD BOOK BEFORE THE CIT(A) IN SUPPORT OF HIS CLAIM AND THE CIT(A) SOUGHT REMAND REPORT FROM THE ASSESSING OFFICER. 5. WE NOTE THAT THE ASSESSING OFFICER CONSIDERING ALL THE EVIDEN CES FILED BY THE ASSESSEE , IN THE REMAND PROCEEDINGS HELD THAT THE ASSESSEE WORKED WITH MERCHANT NAVY WITH A HONG KONG BASED COMPANY , RECEIVED SALARY IN POUNDS FOR THE SERVICES RENDERED OUTSIDE INDIA. THE ASSESSEE IS A NON - RESIDENT AS PER THE PASSPORT ENT RIES , T HEREBY SHRI P.S. SHINGTE LD. AR SUBMITTED THAT THE ASSESSEE IS ENTITLED TO GET RELIEF AND THE ADDITION MADE BY THE ASSESSING OFFICER MAY BE DELETED ON MERITS. ON PERUSAL OF THE REMAND REPORT WHICH IS REPRODUCED IN THE IMPUGNED ORDER WE NOTE THAT TH E ASSESSING OFFICER CONSIDERED ALL THE REQUIRED EVIDENCES TO HOLD THAT THE ASSESSEE IS OUTSIDE INDIA FOR MORE THAN 182 DAYS AND HELD THE ASSESSEE IS ENTITLED TO CLAIM RELIEF U/S. 90/91 OF THE ACT , BUT HOWEVER, WE OBSERVE D 3 ITA NO. 1246/PUN/2017, A.Y. 2013 - 14 THAT THE CIT(A) AT PARA 2.7 OF THE IMPUGNED ORDER HELD THAT THE DATE OF STAMP INDICATING ASSESSEES ARRIVAL IN INDIA ON 17 - 08 - 2012 IS NOT VISIBLE IN ASSESSEES PASSPORT AND THEREBY HELD THAT THE ASSESSEE IS OUTSIDE INDIA FOR THOSE 38 DAYS FROM 10 - 07 - 2012 TO 17 - 08 - 2012 IS NOT SUPPORTED WITH EVIDENCES. THE LD. AR, SHRI P.S. SHINGTE INVITED OUR ATTENTION TO PAGE 51 OF THE PAPER BOOK WHEREIN COP Y OF PASSPORT RELATING TO DATE OF DEPARTURE AND DATE OF ARRIVAL BETWEEN 10 - 07 - 2012 AND 17 - 08 - 2012 IS PLACED AND ON PERUSAL OF THE SAME , WE NOTE THAT THE ENDORSEMENT BY THE COMPETENT AUTHORITY REGARDING ARRIVAL AND DEPARTURE IN INDIA IS NOT CLEARLY VISIBLE. FURTHER, IN SUPPORT OF HIS CONTENTION , THE LD. AR REFERRED TO PAGE 48 OF THE PAPER BOOK WHEREIN THE RECORD OF SEA SERVICES WHICH IS AUTHENTICATED BY THE EMBASSY OF INDIA IN ABU DHABI WHEREIN THE NAME OF SHIP, PORT OF REGISTRY, DATE OF JOINING, DATE OF LEAVING AND DESCRIPTION OF VOYAGE IS REFLECTING. WE NOTE THAT RECORD OF SEA SERVICE CLEARLY SHOWS THE DATE OF JOINING ON 12 - 07 - 2012 AND DATE OF LEAVING THE SHIP WAS ON 16 - 08 - 2012. THE CIT(A) DOUBTED ONLY THE ARRIVAL STAMP ON PASSPORT IS NOT SUPPORTED WITH EVIDENCE BUT HOWEVER THE DEPARTURE FROM INDIA ON 10 - 07 - 2012 IS CLEARLY VISIBLE. IT CLEARLY INDICATES THAT THE ASSESSEE HAS LEFT I NDIA ON 10 - 07 - 2012 AND JOIN ED THE SHIP FOR VOYAGE ON 12 - 07 - 2012. FURTHER, THE ASSESSEE LEFT THE SHIP ON 16 - 08 - 2012 AND WOULD HAVE ARRIVED IN INDIA O N 17 - 08 - 2012. THEREFORE, IN TERMS O F RECORD OF SEA SERVICE OF ASSESSEE , PLACED ON RECORD BEFORE US , IT CAN BE CO NCLUDE D THAT THE ASSESSEE ARRIVED IN INDIA ON 17 - 08 - 2012. THEREBY THE FINDINGS OF CIT(A) THAT THE ASSESSEE IS NOT OUTSIDE INDIA FOR THE PERIOD OF 38 DAYS FROM 10 - 07 - 2012 TO 17 - 08 - 2012 IS UNTENABLE. 6. FURTHER, TO SUPPORT THE ABOVE REASONING WE OB SERVE THAT PAGE NO. 38 OF THE PAPER BOOK SHOWS THAT THE ASSESSEE LEFT INDIA ON 02 - 05 - 2012 AND JOIN ED THE SHIP FOR VOYAGE ON 03 - 05 - 2012 , IN TURN THE ASSESSEE LEFT SHIP ON 4 ITA NO. 1246/PUN/2017, A.Y. 2013 - 14 05 - 06 - 2012 AND ARRIVED IN INDIA ON 06 - 06 - 2012. THE SAID ENDORSEMENT IN PASSPORT WAS EXAMINED BY THE CIT(A) IN IMPUGNED ORDER AT PAGE NO. 7 WHEREIN HE ACCEPTED THE DURATION OF 35 DAYS BETWEEN 02 - 05 - 2012 AND 06 - 06 - 2012 AND HELD THAT THE ASSESSEE IS OUTSIDE INDIA FOR THOSE 35 DAYS. IN THE SAME WAY THE EVIDENCE OF RECORD OF SEA SERVICE SHOW ING THE ASSESSEE JOINING SHIP AND LEAVING ON 10 - 07 - 2012 AND 17 - 08 - 2012, RESPECTIVELY IS RELIABLE PIECE OF EVIDENCE WHICH CAN BE RELIED TO HOLD THAT THE ASSESSEE IS OUT OF INDIA FOR 38 DAYS BE TWEEN 10 - 07 - 2012 AND 17 - 08 - 2012 . THER EFORE, IN OUR OPINION THAT THE ASSESSEE PROVED THAT HE IS OUTSIDE INDIA FOR MORE THAN 182 DAYS AND IS ENTITLED TO CLAIM RELIEF U/S. 90/91 OF THE ACT. THUS, ONLY GROUND RAISED BY THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 4 T H OCTOBER, 2019. SD/ - SD/ - (ANIL CHATURVEDI) (S.S. VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBE R / PUNE; / DATED : 2 4 T H O CTOBER, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1 3, PUNE 4. THE C IT (IT/TP), PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. // // TRU E C O P Y / / / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE