DCIT, New Delhi V. Sh. Avijit Chaliha, Gurgaon

ITA 1773/DEL/2013

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2904 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-08-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 26-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Services rendered outside India; TDS
• Section: 143(3); 250; 148

Judgement Text

ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 1 OF 11 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: A: NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 1773/DEL/2013 ( ASSESSMENT YEAR: 2004-05) DCIT, CIRCLE 48(1), NEW DELHI. VS. SH. AVIJIT CHALIHA, C/O HUAWAI TELECOMMUNICATION PVT. LTD., GURGAON, HARYANA. PAN NO: ABXPC5353L APPELLANT RESPONDENT REVENUE BY : SHRI ANIL KUMAR SHARMA, SR. DR ASSESSEE BY : MS. PREETI GOEL, ADV. ORDER PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL BY REVENUE IS FILED AGAINST THE ORD ER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXX, NEW DELHI, [LD. CIT(A), FOR SHORT], DATED 31.01.2013 FOR ASSESSMENT YEAR 2004-05. THE GROUNDS OF APPEAL ARE AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN:- (I) DELETING THE ADDITION OF RS. 2,32,09,544/- AS RIGHT LY MADE BY THE AO ON THE BASIS OF AUTHENTIC INFORMATION IN HIS POSSESSION TH OUGH THE ASSESSEE FAILED TO APPEAR AND EXPLAIN DURING THE ASSESSMENT PROCEEDING S. ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 2 OF 11 (II) ACCEPTING THE ASSESSEE CONTENTION THAT HE HAS EARNE D THIS INCOME FROM HIS EMPLOYER, WITHOUT PROPER EVIDENCE. (III) THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. (B) ASSESSMENT ORDER WAS PASSED ON 27/12/2011 UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IT ACT, FOR SHORT). IN THE ASSESSMENT ORDER ALL CREDIT ENTRIES FOR THE PERIOD 01/04/2003 TO 31/03/2004 RE FLECTED IN ASSESSEES CITY BANK ACCOUNT NO. 5708929222, AMOUNTING TO TOTAL OF RS. 2 ,32,09,544/-, WERE TREATED AS ASSESSEES INCOME AND ASSESSMENT WAS MADE ACCORDING LY TREATING THE AFORESAID AMOUNT OF RS. 2,32,09,544/- AS ASSESSEES TOTAL INC OME ASSESSABLE TO TAX IN INDIA. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS)-XXX, NEW DELHI. VIDE CONSOLIDATED ORDER DATED 31/01/2013 FOR ASSESSMENT YEARS 2004-05 AND 2005-06, THE LD. CIT(A) DELETED T HE AFORESAID ADDITION OF RS. 2,32,09,544/- FOR ASSESSMENT YEAR 2004-05. RELEVAN T PORTION OF THE AFORESAID IMPUGNED ORDER DATED 31/01/2012 OF THE LD. CIT(A) I S REPRODUCED AS UNDER: 2. IN RESPONSE TO THE APPEAL NOTICE U/S 250 OF THE I.T. ACT, THE APPELLANT S AUTHORIZED REPRESENTATIVE SH. ABHIJIT CHALIA, APPEL LANT, SH. GAURAV JAIN, CA & SH. PRAVAT LATH, CA FOR HEARING WITH WRITTEN SUBMISSION S, JUDGMENTS AND OTHER EVIDENCES. THE CASE WAS DISCUSSED WITH THEM. 3. THE WRITTEN SUBMISSIONS OF THE AR DATED 31.01.20 13 IS PRODUCED AS UNDER FOR REFERENCE: 'WE REFER TO THE CAPTIONED APPEALS FILED BEFORE YOU R OFFICE. IN CONNECTION WITH THE SAME, ON BEHALF OF AND UNDER INSTRUCTIONS OF OUR SU BJECT CLIENT AND IN CONTINUATION TO OUR EARLIER SUBMISSION DATED JANUARY 10, 2013, JANU ARY 28, 2013 AND JANUARY 30, ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 3 OF 11 2013, WE WOULD LIKE TO SUBMIT A SUMMARY, WHICH IS A S UNDER: BACKGROUND A TAX EVASION PETITION DATED JANUARY 22, 2007 WAS F ILED BY THE ESTRANGED WIFE OF THE APPELLANT AGAINST HIM WITH THE DDIT, UNIT-V(L) ALLE GING THAT THE APPELLANT HAS CONCEALED PARTICULARS OF HIS FOREIGN SOURCED INCOME WHICH WERE NOT OFFERED TO TAX IN INDIA. BASIS THE SAME, AN ASSESSMENT ORDER WAS PASS ED BY THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE - 48(1), NEW DEL HI UNDER SECTION 143(3) READ WITH SECTION 147 OF THE INCOME-TAX ACT, 1961 ON DEC EMBER 27, 2011 FOR ASSESSMENT YEAR (AY) 2004-05 AND 2005-06. FACTS RELEVANT FOR CONSIDERATION A SUMMARY OF THE DETAILS FILED WITH YOUR GOODSELF V IDE VARIOUS SUBMISSIONS HAS BEEN PROVIDED IN THE TABLE BELOW- PARTICULARS ASSESSMENT YEAR 2004-05 ASSESSMENT YEAR 2005-06 RESID ENTIAL STATUS NON RESIDENT RESIDENT BUT NOT ORDINARILY RESIDENT ASSESSED INCOME INR 23,209,544 INR 7,717,480 INCOME TAX DEMAND INR 21,800,476 INR 2,304,287 EMPLOYMENT SEPTEMBER 2000 TO JULY, 2003- SONERA SMART TRUST, HONG KONG AUGUST, 2003 TO JULY, 2004- TEKELEC INCORPORATION, USA AUGUST, 2003 TO JULY, 2004- TEKELEC INCORPORATION, USA FROM AUGUST, 2004- TEKELEC SYSTEMS INDIA PRIVATE LIMITED, NEW DELHI RECEIPT OF SALARY INCOME OUTSIDE INDIA OUTSIDE INDIA WHILE WORKING WITH TEKELEC INCORPORATION, USA IN INDIA ONCE EMPLOYED WITH TEKELEC SYSTEMS ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 4 OF 11 INDIA PRIVATE LIMITED, NEW DELHI SERVICES RENDERED OUTSIDE INDIA OUTSIDE INDIA WHILE WORKING WITH TEKELEC INCORPORATION, USA IN INDIA ONCE EMPLOYED WITH TEKELEC SYSTEMS INDIA PRIVATE LIMITED, NEW DELHI INCOM E OFFERED TO TAX NOT OFFERED AS HE WAS A NON RESIDENT AND FOREIGN SOURCED INCOME WAS NOT TAXABLE FOREIGN SOURCES INCOME NOT OFFERED TO TAX AS HE WAS A RESIDENT BUT NOT ORDINARILY RESIDENT INCOME SOURCES FROM INDIA POST AUGUST 2004 OFFERED TO TAX. TDS CERTIFICATES IN THIS REGARD HAVE BEEN ENCLOSED EARLIER. REMITTANCE OF FUNDS TO INDIA AMOUNTS WERE REMITTED TO INDIA MAINLY FOR THE SELF USE OF THE APPELLANTS WIFE AND FOR THEIR CHILD, AS THEY WERE RESIDING IN INDIA AND WERE COMPLETELY DEPENDENT ON THE APPELLANTS EARNING / SALARY DURING THE RELEVANT PERIOD AMOUNTS WERE REMITTED TO INDIA MAINLY FOR THE SELF USE OF THE APPELLANTS WIFE AND FOR THEIR CHILD, AS THEY WERE RESIDING IN INDIA AND WERE COMPLETELY DEPENDENT ON THE APPELLANTS EARNING / SALARY DURING THE RELEVANT PERIOD APPROVAL FOR INITIATING RE-ASSESSMENT PROCEEDINGS AFTER EXPIRY OF 4 YEARS FORM END OF SUBJECT AY NOT OBTAINED NOT OBTAINED FURTHER, THE APPELLANT WOULD LIKE TO SUBMIT THAT HE WAS PHYSICALLY HARMED IN THE COURT PREMISES DURING THE DIVORCE PROCEEDINGS AND S UFFERED SEVERE PERMANENT DAMAGE IN HIS LEFT EYE. THIS SHOWS HOW MALICIOUS TH E PROCEEDINGS HAD BECOME AND THAT VARIOUS COMPLAINTS HAD BEEN MADE AGAINST THE A PPELLANT BEFORE VARIOUS AUTHORITIES WHICH WERE ALL DRIVEN WITH AN INTENTION TO MALIGN THE IMAGE OF THE ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 5 OF 11 APPELLANT WITHOUT ANY REAL SUBSTANCE. A COPY OF A C ERTIFICATE ISSUED BY THE APPELLANTS GENERAL PRACTITIONER CERTIFYING THAT HE SUFFERED A PENETRATING INJURY TO HIS LEFT EYE IS ENCLOSED AS ANNEXURE 1. 4. I HAVE PERUSED THE ASSESSMENT ORDER, GROUNDS O F APPEALS, WRITTEN SUBMISSION AND REMAND REPORT AND DISCUSSED THE MATTER WITH THE AR OF THE ASSESSEE VERY CAREFULLY. THE APPELLANT ALSO APPEARED BEFORE ME IN THE COURSE OF HEARING. THE APPELLANT HAD TAKEN ABOUT 9 GROUNDS OF APPEAL FOR T HE A.Y. 2004-05 AND 10 GROUNDS OF APPEAL FOR THE A.Y. 2005-06. THE APPELLANT .VAS AWAY FROM INDIA AND WAS WORKING IN USA FOR THE PERIOD 01.08 2003 TO 31.07.2004. HE WAS WORKING WITH A COMPANY CALLED TEKELEC, WNO HAD CONFIRMED THIS FACTS VIDE I TS LETTER DATED 16.01.2013. HIS LETTER IS RE-PRODUCED FOR READY REFERENCE:- THIS LETTER IS TO CONFIRM THAT AVIJIT CHALIYA W AS AN EMPLOYEE OF TEKELEC, INC, NC 27560, USA FROM DATE OF AUGUST 1 ST , 2003 THROUGH JULY, 31 ST , 2004. DURING THIS TIME MR. CHALIHA WAS EMPLOYED IN A FULL TIME CAPACI TY IN THE ROLE OF BUSINESS DEVELOPMENT DIRECTOR BASED AT RALEIGH, NC, USA. HE WAS AGAIN OUT OF INDIA FROM 1ST SEPT., 2000 TO 1 8.07.2003 VIDE EMPLOYER'S LETTER DATED 17 MAY 2010, WHICH WAS REPR ODUCED AS UNDER:- T HIS IS TO CONFIRM THAT AVIJIT CHALIHA WAS EMPLOYED BY S ONERA SMARTTRUST HONGKONG AS A REGIONAL MANAGER IN HONGKONG WHEN HE LEFT SMARTTRUST. AVIJIT WAS EMPLOYED AT SMARTTRUST DURING THE PERIOD 1ST SEPTEM BER 2000 TILL THE 18TH JULY 2003.' THE APPELLANT DURING THIS PERIOD HAD SEND MONEY THR OUGH CITI BANK, USA WHO HAS NRI ACCOUNT IN DELHI FOR THE MAINTENANCE OF HIS SON & WIFE IN DELHI. LATER ON, THERE WAS DIVORCE SUITE FILED BY THE WIFE OF APPELL ANT AND THEY GOT SEPARATED IN 2006 THROUGH COURT PROCEEDINGS. IN THE COURT PROCEEDINGS , THE APPELLANT ALSO GOT A BLOW FROM HIS OPPONENT LAWYER AND LOST HIS LEFT EYESIGHT . THE SEPARATION HAPPENED IN 2006. THEN THE WIFE OF THE APPELLANT WROTE A TEP TO INCOME TAX DEPARTMENT ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 6 OF 11 INTIMATING THESE FACTS ON WHICH THIS ASSESSMENT WAS MADE. HOWEVER, THE AO DID NOT ENQUIRE INTO SOURCE OF MONEY COMING INTO THE NRI AC COUNT IN DELHI AND MADE THE ADDITION OF RS.2,32,09,544/- IN THE A.Y. 2004-05 & RS.37,20,884/- IN THE A Y. 2005- 06. THE APPELLANT EARNED THIS INCOME IN THE TEKELEC INCORPORATION, USA, AS SALARY PAYMENT FOR FOREIGN EMPLOYER AND THESE ARE TAXED IN USA. AS PER DOUBLE TAXATION AVOIDANCE AGREEMENT THESE ARE NOT TO BE TAXED AGAIN IN INDIA. HENCE, CONSIDERING THE FACTS OF THE CASE, APPELLAN TS BAD CONDITION OF MARRIED LIFE AND HAVING THE SOURCES EXPLAINED BY TH E APPELLANT CAREFULLY, I HAVE NO OTHER OPTION BUT TO DELETE THE ADDITION MADE BY THE AO OF ABOVE AMOUNTS FOR THE ABOVE 2 ASSESSMENT YEARS. (C) THIS PRESENT APPEAL BEFORE INCOME TAX APPELLAT E TRIBUNAL (ITAT, FOR SHORT) HAS BEEN FILED BY REVENUE AGAINST THE AFORESAID IMPUGNE D ORDER DATED 31/01/2013 FOR ASSESSMENT YEAR 2004-05. IN THE COURSE OF APPELLAT E PROCEEDINGS IN ITAT, A PAPER BOOK WAS FILED FROM ASSESSEES SIDE, CONTAINING THE FOLLOWING PARTICULARS, ON 17.10.2016: 1. COPY OF TAX EVASION PETITION DATED 22.01.2007 F ILED BY RESPONDENT ASSESSEES EX-WIFES FATHER BEFORE DIRECTOR GENERAL OF INCOME TAX (INVESTIGATION). 2. COPY OF EMPLOYMENT LETTER DATED 17/5/2010 ISSUED TO THE RESPONDENT ASSESSEE BY SMARTTRUST LTD., THEREBY CERTIFYING THA T THE RESPONDENT ASSESSEE WAS EMPLOYED WITH THEM FROM 1.09.2000 TO 18.07.2003 . 3. COPY OF EMPLOYMENT LETTER DATED 16/01/2013 ISSUE D TO THE RESPONDENT ASSESSEE FROM TEKELEC INC. (USA), THEREBY CERTIFYIN G THAT THE RESPONDENT ASSESSEE WAS EMPLOYED WITH THEM FROM 1.08.2003 TO 3 1.07.2004. 4. COPY OF THE STATEMENT SHOWING CONTRIBUTIONS MADE BY SMARTTRUST LTD. (EX-EMPLOYER OF THE RESPONDENT ASSESSEE) TOWARDS EM PLOYEE PROVIDENT FUND ACCOUNT OF THE RESPONDENT ASSESSEE FOR PERIOD BEGIN NING 01.12.2000 UPTILL 30.06.2003. ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 7 OF 11 5. COPY OF THE RECONCILIATION STATEMENT OF RESPONDE NT ASSESSEES CITIBANK ACCOUNT FOR AY 2004-05 AND 2005-06. 6. COPY OF STATEMENT SHOWING DETAILS OF AMOUNTS CRE DITED TO RESPONDENT ASSESSEES BANK ACCOUNT DURING AY 2004-05 BY HIS FO REIGN EMPLOYERS. 7. COPY OF LETTER DATED 25.4.2011 FILED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN RESPONSE TO NOT ICE ISSUED UNDER SECTOR 148 OF THE INCOME TAX ACT, 1961 (THE ACT). 8. COPY OF LETTER DATED 25.05.2011 FILED BEFORE TH E ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, INTER ALIA, FURNI SHING:- A) BRIEF NOTE ELUCIDATING THE GRANT OF DIVORCE AND TERMS OF SETTLEMENT BETWEEN THE RESPONDENT ASSESSEE AND HIS EX-WIFE. B) COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 6. 04.2010 ENTERED INTO BETWEEN THE RESPONDENT ASSESSEE AND HIS EX-WIF E, MS. GAYATRI HAZARIKA CHALIHA, THEREBY STATING THE TERMS OF SETT LEMENT OF DIVORCE BY MUTUAL CONSENT. C) COPY OF THE ORDER DATED 14.05.2010 PASSED BY THE SUPREME COURT THEREBY STATING THAT- (1) AN MOU HAD BEEN EXECUTED BETWEEN THE RESPONDENT ASSESSEE AND HIS EX-WIFE, AMICABLY RESOLVING THE DI SPUTES BETWEEN THEM. (2) DIRECTING THE PARTIES INVOLVED TO FILE A DIVOR CE PETITION THROUGH MUTUAL CONSENT. (3) STAYING THE PROCEEDINGS INITIATED BY EITHER OF PARTIES BEFORE VARIOUS COURTS/ FORUMS. D) COPY OF THE ORDER DATED 24.01.2011 PASSED BY THE SUPREME COURT THEREBY STATING THAT ALL PENDING PROCEEDINGS BETWEE N THE PARTIES INCLUDING COMPLAIN TO ANY GOVERNMENT AUTHORITY, BY EITHER OF THE PARTIES, HAVE BEEN WITHDRAWN. 9. COPY OF LETTER DATED 14.12.2011 FILED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 10. COPY OF LETTER DATED 23.12.2011 FILED BEFORE TH E ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, INTER ALIA, FURNI SHING:- A) COPY OF THE AFFIDAVIT DATED 23.12.2011 ISSUED BY THE RESPONDENT A SSESSEE. 11. COPY OF WRITTEN SUBMISSIONS DATED 10.01.2013 FI LED BY THE ASSESSEE BEFORE THE CIT(A) DURING THE COURSE OF APPELLATE PROCEEDIN GS. ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 8 OF 11 12. COPY OF WRITTEN SUBMISSIONS DATED 28.01.2013 FI LED BY THE ASSESSEE BEFORE THE CIT(A) DURING THE COURSE OF APPELLATE PROCEEDIN GS. (C.1) THE CONTENTS OF THE AFORESAID PAPER BOOK REMA INED UN-CONTROVERTED FROM REVENUES SIDE TILL THE DATE OF HEARING BEFORE US O N 27/08/2019. COPIES OF JUDICIAL PRECEDENTS IN THE CASES OF AVDESH KUMAR V. DCIT [20 18] 96 TAXMANN.COM 340 (DELHI- TRIB.) AND PRAMOD KUMAR SAPRA V. ITO [2017] 87 TAXM ANN.COM 98 (DELHI-TRIB.) WERE ALSO FILED FROM ASSESSEES SIDE, DURING APPELLATE P ROCEEDINGS IN ITAT. (D) AT THE TIME OF HEARING BEFORE US, THE LD. COUNS EL FOR ASSESSEE RELIED ON THE ORDER OF THE LD. CIT(A), RELEVANT PORTION OF WHICH HAS AL READY BEEN REPRODUCED IN THE FOREGOING PARAGRAPH NO. (B). THE LD. COUNSEL FOR A SSESSEE PLACED FURTHER RELIANCE ON THE AFORESAID PRECEDENTS IN THE CASE OF AVDESH KUMA R V. DCIT (SUPRA) AND PRAMOD KUMAR SAPRA V. ITO (SUPRA). IN PARTICULAR, SHE HIG HLIGHTED THE FACTS THAT THE ASSESSEE EARNED THE AFORESAID AMOUNT TOTALING OF RS. 2,32,09 ,544/- AS INCOME ON ACCOUNT OF SALARY FROM TEKELEC INCORPORATION, USA WHICH WAS AL READY TAXED IN USA; AND FURTHER, THAT AS PER DOUBLE TAXATION AVOIDANCE AGREEMENT, T HESE ARE NOT TO BE TAXED AGAIN IN INDIA. SHE RELIED ON THE PAPER BOOK AS EVIDENCE FO R HEARING CONTENTIONS AND SUBMISSIONS. THE LEARNED DEPARTMENTAL REPRESENTATI VE (LD. DR, FOR SHORT) COULD NOT REBUT THE CLAIM, THE SUBMISSIONS AND CONTENTIONS FR OM ASSESSEES SIDE AND HE COULD NOT POINT OUT ANY MISTAKE OR ERROR, EITHER ON FACTS OR IN LAW, IN THE AFORESAID IMPUGNED ORDER DATED 31.01.2013 OF LD. CIT(A) AS FAR AS ASSE SSMENT YEAR 2004-05, WITH WHICH ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 9 OF 11 WE ARE CONCERNED IN THIS APPEAL BEFORE US, IS CONCE RNED. THE LD. DR LEFT THE MATTER TO THE DISCRETION OF THE BENCH. (E) WE HAVE HEARD BOTH SIDES. WE HAVE PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CONSIDERED THE JUDICIAL PRECEDENTS BRO UGHT TO OUR ATTENTION. ON PERUSAL OF THE AFORESAID IMPUGNED ORDER DATED 31.01.2013 OF THE LD. CIT(A), IT IS FOUND THAT THE ASSESSEE WAS AWAY FROM INDIA AND WAS WORKING IN USA FROM 01.08.2003 TO 31.07.2004; WHICH INCLUDES THE PERIOD FROM 01.08.2003 TO 31.03. 2004 FORMING PART OF PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2004-05 WITH WHICH WE A RE CONCERNED IN THE PRESENT APPEAL. THUS, THE ASSESSEE WAS OUTSIDE INDIA FOR TH E PERIOD OF MORE THAN 182 DAYS DURING PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 20 04-05 AND WAS A NON RESIDENT WITHIN THE MEANING OF SECTION 6 OF INCOME TAX ACT. FURTHER DURING THE AFORESAID PERIOD ON 01.08.2003 TO 31.03.2004 THE ASSESSEE WAS AN EMP LOYEE OF TEKELEC, INC. NC 27560, USA IN A FULL TIME CAPACITY IN THE ROLE OF BUSINESS DEVELOPMENT DIRECTOR BASED AT RELEIGH, NC, USA. FURTHER, PERUSAL OF PARA 4 OF TH E IMPUGNED ORDER DATED 31/01/2013 OF THE LD. CIT(A) SHOWS THAT THE ASSESSEE HAD SENT MONEY THROUGH CITY BANK, USA FOR THE MAINTENANCE OF HIS SON AND WIFE IN DELHI; THAT LATER ON, THERE WAS DIVORCE SUIT FILED BY THE WIFE OF APPELLANT AND THEY GOT SEPARATED IN 2006, THROUGH COURT PROCEEDING; THAT IN THE COURT PROCEEDINGS, THE APPELLANT ALSO GOT A BLOW FROM HIS OPPONENT LAWYER AND LOST HIS LEFT EYESIGHT; THAT THE SEPARATION HAPPEN ED IN 2006; THAT THE WIFE OF THE ASSESSEE WROTE A TAX EVASION PETITION (TEP, FOR SH ORT) TO INCOME TAX DEPARTMENT BASED ON WHICH ASSESSMENT WAS MADE BY THE AO; AND T HAT THE ASSESSEE HAD EARNED ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 10 OF 11 THE AFORESAID AMOUNT OF RS. 2,32,09,544/- AS SALARY PAYMENT FROM AFORESAID FOREIGN EMPLOYER, WHICH WAS ALREADY TAXED IN USA AND WAS NO T TO BE TAXED IN INDIA AGAIN AS PER DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN USA AND INDIA. THESE FACTS ARE ALSO SUBSTANTIATED BY THE CONTENTS OF THE PAPER BOO K REFERRED TO ALREADY IN FOREGOING PARAGRAPH NO. (C) OF THIS ORDER. NOTHING HAS BEEN B ROUGHT TO OUR NOTICE BY THE LD. DR TO WARRANT ANY INTERFERENCE BY US IN THE AFORESAID IMPUGNED ORDER DATED 31.01.2013 OF LD. CIT(A) FOR ASSESSMENT YEAR 2004-05. IN VIEW O F THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER PASSED BY THE LD. CI T(A) IS IN ACCORDANCE WITH LAW. WE ARE FURTHER OF THE VIEW THAT THE ISSUE IN DISPUTE I S COVERED IN FAVOUR OF THE ASSESSEE BY THE AFORESAID PRECEDENTS IN THE CASES OF AVDESH KUM AR V. DCIT (SUPRA) AND PRAMOD KUMAR SAPRA V. ITO (SUPRA); AS NEITHER SIDE HAS BRO UGHT ANY DISTINGUISHING FACTS AND CIRCUMSTANCES FOR THIS YEAR. THEREFORE, RESPECTFULL Y FOLLOWING THE AFORESAID JUDICIAL PRECEDENTS, AND IN VIEW OF THE FOREGOING DISCUSSION , WE ALSO DECIDE THE DISPUTED ISSUE FOR THIS YEAR IN FAVOUR OF THE ASSESSEE AND DISMISS THE APPEAL FILED BY THE REVENUE. (F) IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/09/2019 . SD/- SD/- (H.S. SIDHU) (ANADEE NATH M ISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 03/09/2019 POOJA/- ITA NO.- 1773/DEL/2013. SH. AVIJIT CHALIHA. PAGE 11 OF 11 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER