Anwar Balg Mirza, Hyderabad V. Income Tax Officer, Ward (International Taxation), Nellore

ITA 1327/Hyd/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7589 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Assessment Year: 2016-2017
• Appeal Filed On: 26-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ABHIROOP BHARGAV
• Keywords: Double taxation relief; Revised return
• Section: 2; 143(3); 143(2); 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B - SMC, HYDERABAD BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.1327/HYD/2019 ASSESSMENT YEAR: 2016 - 17 SHRI ANWAR BAIG MIRZA, HYDERABAD - 08. PAN: AJMPM 1685 L VS. THE INCOME TAX OFFICER, WARD INTERNATIONAL TAXATION, INCOME TAX OFFICE, 24 - 2 - 438, 1 ST FLOOR, GT ROAD, NELLORE. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI ABHIROOP BHARGAV REVENUE BY: SRI SUNKU SRINIVAS, DR DATE OF HEARING: 06/11/2019 DATE OF PRONOUNCEMENT: 28 / 01 /20 20 ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 10, HYDERABAD IN APPEAL NO. 0146/CIT(A) - 10/2018 - 19 DATED 28/06/2019 PASSED U/S. 143(3) R.W.S 250(6) OF THE ACT FOR THE A.Y. 2016 - 17. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HIS APPEAL: - 1. THE ORDER OF THE LD. CIT(A) IS NOT JUSTIFIED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LD. CIT(A) HAS DISMISSED THE APPEAL WITHOUT PASSING A SPEAKING ORDER. 2 3. THE LD. CIT(A) ERRED IN UPHOLDING THE ORDER OF THE LD. A.O. SINCE NO VALID ASSESSMENT CAN BE FRAMED U/S. 143(3) ON BELATED TAX RETURN. 4. THE LD. CIT(A) FAILED TO APPRECIATE THAT NO ORDER OF ASSESSMENT CAN BE PASSED WITHOUT ISSUING NOTICE U/S. 143(2) OF THE ACT. 5. THE LD. CIT(A) ERRED IN NOT GRANTING RELIEF UNDER INDO - MALAYSIAN DOUBLE TAXATION AVOIDANCE AGREEMENT. 6. THE LD. CIT(A) HA NOT APPRECIATED THE AMENDMENT TO SECTION 139(5 ) WHICH PERMITTED REVISION OF BELATED RETURN FOR ANY ASSESSMENT YEAR. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT WHILE ASSESSING THE INCOME OF THE ASSESSEE THE LD. REVENUE AUTHORITIES HAD NOT CONSIDERED THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA AND MALAYSIA. THE LD. AR FURTHER SUBMITTED THAT THE LD. REVENUE AUTHORITIES HAD ALSO REJECTED THE REVISED RETURN FILED BY THE ASSESSEE ON THE GROUND THAT THE ORIGINAL RETURN FILED BY THE ASSESSEE IS BELATED. HOWEVER, THE LD. AR PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD. AO IN ORDER TO GRANT THE BENEFIT OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA AND MALAYSIA WHILE ASSESSING THE INCOME OF THE ASSESSEE. THE LD. DR ON THE OTHER HAND COULD NOT CONTROVERT TO THE SUBMISSION OF THE LD. AR. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS PERTINENT TO MENTION THAT WHILE ASSESSING THE INCOME OF THE ASSESSEE IT IS THE PRIMARY DUTY OF THE LD. AO TO EXAMINE THE ISSUES AND GRANT ANY BENEFIT AVAILABL E UNDER THE ACT JUDICIOUSLY. IN THE CASE OF THE ASSESSEE, THOUGH THE ASSESSEE HAS FILED 3 BELATED RETURN AND THEREFORE NOT ENTITLED TO FILE REVISED RETURN, THE LD. AO CANNOT FAIL IN HIS DUTY TO CONSIDER THE BENEFICIAL PROVISIONS OF THE ACT INCLUDING THE REL EVANT DOUBLE TAXATION AVOIDANCE AGREEMENT WHILE ASSESSING THE INCOME OF THE ASSESSEE PARTICULARLY WHEN THE ASSESSEE HAS POINTED OUT . THEREFORE, IN THE INTEREST OF JUSTICE, I HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. AO IN ORDER TO CONSIDER THE APPLIC ABLE ARTICLE S UNDER THE DTAA BETWEEN INDO AND MALAYSIA AND THEREAFTER ASSESS THE INCOME OF THE ASSESSEE IN ACCORDANCE WITH LAW AND MERIT. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 28 TH JANUARY, 2020. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD, DATED: 28 TH JANUARY, 2020. OKK COPY TO: - 1) SHRI ANWAR BAIG MIRZA, H.NO. 8 - 1 - 21/76, FLAT NO.102, OPP. MASJID NOOR, SURYA NAGAR COLONY, TOLICHOWKI, HYDERABAD. 2) INCOME TAX OFFICER, INTERNATIONAL TAXATION, INCOME TAX OFFICE, 24 - 2 - 438, 1 ST FLOOR GT ROAD, NELLORE. 3) THE CIT(A) - 10, HYDERABAD. 4) THE CIT (IT & TP), HYDERABAD. 5) THE CCIT, (IT) (SZ), BENGALURU 6) THE DR, ITAT, HYDERABAD 7) GUARD FILE