Neelam Bansal, Kolkata V. JCIT, Range - 49, Kolkata , Kolkata

ITA 127/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8106 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 29-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C J SINGH SRDR
• Assessee Lawyers: S CHOUDHURY
• Section: 142(1)

Judgement Text

I.T.A NO.127/KOL/2018 NEELAM BANSAL PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA BEFORE: SHRI P. M. JAGTAP, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NO.127/KOL/2018 (ASSESSMENT YEAR: 2011-12) NEELAM BANSAL APPELLANT [PAN:AGYPR1259C] VS JCIT, RANGE-49, KOLKATA RESPONDENT FOR THE APPELLANT : SHRI S. CHOUDHURY, ADVOCATE FOR THE RESPONDENT : SHRI C. J. SINGH, SR. DR, JCIT DATE OF HEARING : 17.06.2019 DATE OF PRONOUNCEMENT : 17.07.2019 ORDER SHRI S.S. VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.11.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLKATA [CIT(A)] FOR ASSESSMENT YEAR 2011-12 WHEREIN HE CONFIRMED THE ORDER OF ASSESSING OFFICER EX PARTE OF ASSESSEE. 2. HEARD BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE IS AN INDIVIDUAL AND WAS EMPLOYED WITH DB GLOBAL SERVICES PVT. LTD. IN NEW YORK, USA DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE FILED RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.38,25,772/-. NOTICES U/S 143(2) & 142(1) WERE ISSUED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND DIFFERENCE AS PER INCOME TAX STATEMENTS FILED WITH INTERNAL REVENUE SERVICE, USA AND INCOME TAX AUTHORITY IN INDIA. ACCORDING TO ASSESSING OFFICER, THE ASSESSEE EARNED INCOME IN $88175 BUT HAS I.T.A NO.127/KOL/2018 NEELAM BANSAL PAGE | 2 SHOWN $50564 IN THE RETURN OF INCOME FILED IN INDIA. THE ASSESSING OFFICER ASKED THE ASSESSEE FOR CLARIFICATION IN RESPECT OF THE DIFFERENCE BETWEEN STATEMENTS THAT HAVE BEEN FILED IN USA AND INDIA. THE ASSESSEE SUBMITTED THAT THE DIFFERENCE OF $36711 WAS THE EXPENDITURE INCURRED BY HER EMPLOYER COMPANY WHICH WAS DIRECTLY PAID TO THE OUTSOURCING COMPANY REGARDING RELOCATION ALLOWANCE WHICH INCLUDES AIRFARE OF HERSELF, FAMILY MEMBERS AND OTHER EXPENSES. THE ASSESSEE CONTENDED THAT THE ABOVE SAID DIFFERENCE IS NOT INCLUDIBLE IN THE TOTAL INCOME AND CLAIMED THE BENEFIT U/S 90/91 AS PER DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA AND USA. THE ASSESSING OFFICER FOUND THE SAID SUBMISSIONS ARE NOT ACCEPTABLE AND HELD THAT THE DIFFERENCE OF $36711 (RS.16,50,726/- UNDER CONVERSION) ARE THE PERQUISITE AND BENEFITS IN LIEU OF SALARY AS DEFINED IN SECTION 17 OF THE INCOME TAX ACT 1961 WHICH HAVE BEEN EXPENDED BY THE ASSESSEES EMPLOYER COMPANY FOR THE BENEFIT OF ASSESSEE AND IS CHARGEABLE TO TAX IN INDIA AND ADDED THE AFORESAID RS.16,50,726/- ($36711) TO THE TOTAL INCOME OF THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE CHALLENGED THE SAME BEFORE THE CIT(A) WHEREIN IT IS NOTED THAT THE CIT(A) CONFIRMED THE ORDER OF ASSESSING OFFICER EX PARTE OF ASSESSEE. 4. THE CONTENTION OF THE LD. AR IS THAT THE EMPLOYER OF ASSESSEE MADE A PROVISION OF GIVING RELOCATION ALLOWANCE TO EVERY EMPLOYEE IN TERMS OF EMPLOYMENT AGREEMENT. THE SAID RELOCATION CHARGES ARE NOT INCLUDIBLE TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE IS READY TO PRODUCE THE SAID RELEVANT EVIDENCE SHOWING THAT IT IS NOT CHARGEABLE TO TAX IN INDIA AND PRAYED TO REMAND THE MATTER TO THE FILE OF ASSESSING OFFICER. I.T.A NO.127/KOL/2018 NEELAM BANSAL PAGE | 3 5. AS DISCUSSED ABOVE, THERE WAS NO OPPORTUNITY FOR THE ASSESSEE IN THE FIRST APPELLATE PROCEEDINGS AND SINCE THE LD. AR HAS UNDERTAKEN TO BRING ON RECORD EVIDENCE TO SHOW THE IMPUGNED AMOUNT IS NOT CHARGEABLE TO TAX IN INDIA. THE LD. DR REPORTED NO OBJECTION IN REMANDING THE MATTER TO THE FILE OF ASSESSING OFFICER. WE DEEM IT PROPER TO REMAND THE MATTER TO THE FILE OF ASSESSING OFFICER FOR HIS FRESH VERIFICATION. THUS GROUNDS RAISED BY THE ASSESSEE RELATING TO THE ISSUE AS DISCUSSED ABOVE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.07.2019. SD/- SD/- [P. M. JAGTAP] [S.S. VISWANETHRA RAVI] VICE PRESIDENT JUDICIAL MEMBER DATED : 17.07.2019 PLACE : KOLKATA RS, SR.PS COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT NEELAM BANSAL, K.K. PODDAR & ASSOCIATES, 135A, BRB BASU ROAD, 2 ND FLOOR, KOL-1. 2 RESPONDENT JCIT, RANGE-49, KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA //TRUE COPY// BY ORDER, ASSISTANT REGISTRAR, ITAT, KOLKATA