Anurag Damani, Kolkata V. ITO, Ward - 30(1) , Kolkata

ITA 1774/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4239 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 29-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Keywords: Rectification of order; Salary income; TDS; FORM 26AS
• Section: 143(1); 192; 154

Judgement Text

1 ITA NO. 1774/KOL/2019 ANURAG DAMANI, AY- 2012-13 , B(SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL B(SMC) BENCH : KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] ITA NO.1774/KOL/2019 ASSESSMENT YEAR: 2012-13 ANURAG DAMANI (PAN: AEYPD5762N) VS. INCOME TAX OFFICER, WD-30(1), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 05.12.2019 DATE OF PRONOUNCEMENT 28.02.2020 FOR THE APPELLANT SHRI PARAS NATH KESHARI, FCA FOR THE RESPONDENT SHRI JAYANTA KHANRA, JCIT, SR. D R ORDER THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-9, KOLKATA DATED 06-06-2019 FOR THE ASSESSMENT YEAR 2012-13. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS IN RESPEC T OF TAXABILITY OF THE INCOME EARNED IN USA DURING THE PERIOD OF HIS EMPLOYMENT. THE ASSES SEE WAS EMPLOYED WITH THE ICICI BANK LTD MUMBAI. DURING THE PERIOD OF HIS EMPLOYME NT, HE WAS SENT TO USA AT THE NEW YORK BRANCH OF ICICI BANK LTD. THE PERIOD FOR WHIC H HE WAS IN USA COMMENCED FROM 16.10.2011 AND ENDED ON 31.03.2012. INCOME TAX WAS DEDUCTED AT SOURCE AS PROVIDED U/S. 192 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERR ED TO AS THE ACT). IN RESPECT OF INCOME WHICH THE ASSESSEE RECEIVED AT USA, THE NEW YORK BR ANCH OF THE ICICI BANK LTD. HAD DEDUCTED WITHHOLDING TAX ETC. AND THE SAME AMOUNTED TO US$ 5761.60. ACCORDING TO ASSESSEE, HE INADVERTENTLY, WHILE FILING UP THE RET URN OF INCOME NOT ONLY DECLARED THE INCOME EARNED IN INDIA BUT ALSO DECLARED THE INCOME EARNED ABROAD AND WHICH IN INDIA CURRENCY CAME TO RS.16,33,668/-. ACCORDING TO ASSESSEE, IN T HE COMPUTATION OF INCOME WHAT THE ASSESSEE DID WAS THAT HE CLAIMED THE AMOUNT OF TDS WHICH WAS DEDUCTED IN USA. THE CPC WHILE PROCESSING THE RETURN OF INCOME HAD NOT A LLOWED CREDIT OF THE TAX AMOUNT WHICH WAS DEDUCTED AT USA AND PAID TO THE CREDIT OF THE U S GOVT. THE ASSESSEE THEREAFTER SUBMITTED AN E-FILED RECTIFICATION REQUEST FOR ALLO WING CREDIT OF THE AMOUNT OF TDS BUT THE 2 ITA NO. 1774/KOL/2019 ANURAG DAMANI, AY- 2012-13 CPC PROCEEDED ON THE BASIS OF THE MISMATCH IN THE A MOUNT OF TDS CLAIMED AND AS APPEARING IN THE FORM 26AS. THE MISMATCH WAS ONLY WITH REGARD TO AMOUNT OF TAX DEDUCTED AT SOURCE IN US. THE E-FILED REQUEST FOR RECTIFICATION WAS REJECTED BY CPC. 3. ON APPEAL, THE ONLY PRAYER OF THE ASSESSEE BEFOR E THE LD. CIT(A) WAS THAT THERE BEING TAXATION TREATY WITH THE US GOVT., THE ASSES SEE IS ENTITLED TO CREDIT OF THE AMOUNT OF TAX DEDUCTED AT SOURCE IN USA AND PAID TO THE CREDI T OF THE US GOVT. BY THE EMPLOYER AT NEW YORK. THE PRAYER OF ASSESSEE WAS THAT EITHER T HE AMOUNT OF TAX GIVEN IN USA BE GIVEN CREDIT OR IN THE ALTERNATIVE, THE INCOME WHICH HAS BEEN EARNED IN USA BE TAKEN OUTSIDE THE COMPUTATION OF THE TOTAL INCOME BEING DETERMINED IN INDIA. HOWEVER, LD. CIT(A) REJECTED THE PRAYER OF THE ASSESSEE. AGGRIEVED, ASSESSEE IS BEFORE THIS TRIBUNAL BY FILING THE GROUNDS OF APPEAL AS UNDER: 1. THAT LD. ASSTT. COMMISSIONER (CPC) ERRED IN LA W AS WELL AS IN FACT IN NOT ALLOWING TAX DEDUCTED AT SOURCE OF RS 2,99,911/- (EQUIVALENT TO US 5761.60) DEDUCTED ON SALARY RECEIVED AS AN EMPLOYEE IN ICLII BANK, NEW YORK BRANCH, NEW YORK, USA FOR THE PERIOD OF WORK AS AN EMPLOYEE COMMENCED FROM 16-10-2011 TO 31-3-2012 IN ORIGINAL RETURN OF INCOME FILED ON 28-03-2013 AS WELL AS IN RECTIFICATION ORDER DAT ED 16-09-2013 UNDER SECTION 154 OF I.T ACT 1961. 2) THAT LD. C.I.T(A)- 9 , KOLKATA HAS ERRED IN LAW AS WELL AS IN FACT IN NOT ALLOWING RELIEF U/S 90/91 OF LT ACT 1961 FOR TDS DEDUCTED RS.2,99,9 11/- ON FOREIGN SALARY INCOME OF RS 16,33,668/- (NET) RECEIVED IN NEW YORK, USA. 3) THAT LD. C.I.T (A)- 9, KOLKATA HAS FAILED TO APP RECIATE THAT FOREIGN SALARY OF RS.16,33,688/- HAS ALREADY BEEN SHOWN UNDER SALARY INCOME IN ORIGINAL RETURN AS WELL RECTIFIED RETURN FILED U/S 154 AND 011 THE PRINCIPA L OF NATURAL LAW AND JUSTICE, SAME INCOME CANNOT BE SUBJECT TO TAX TWICE I.E. IN INDIA AS WEL L AS IN USA. 4. HEARD BOTH THE PARTIES AND WE NOTE THAT THE ASSE SSEE IS AN INDIVIDUAL HAVING INCOME OF SALARY FROM ICICI BANK LTD. (DOMESTIC & OVERSEAS ) SUBMITTED THE RETURN OF INCOME ELECTRONICALLY TO CENTRALIZED PROCESSING CENTRE ON 28.03.2013 DECLARING THEREIN TOTAL INCOME OF RS.21,52,759/- COMPRISING OF THE FOLLOWING: INCOME FROM SALARY RS.21,31,920/- INCOME FROM OTHER SOURCES RS. 20,839/- RS.21,52,759/- INCOME FROM SALARY RECEIVED FROM ICICI BANK LTD. CO MPRISED OF THE FOLLOWING: DOMESTIC TAXABLE SALARY RS. 4,98,251/- FOREIGN SALARY SUBJECT TO TAX RS. 16,33,668/- RS. 21,31,919/- 3 ITA NO. 1774/KOL/2019 ANURAG DAMANI, AY- 2012-13 IT WAS BROUGHT TO MY NOTICE THAT THE TAX WAS DEDUCT ED AT SOURCES ON SALARY RECEIVED IN INDIA AND CREDIT ALLOWED FOR THE SAME. HOWEVER, NO BENEF IT OF TDS DEDUCTED IN USA WAS ALLOWED/GIVEN CREDIT IN THE INTIMATION U/S. 143(1) OF THE ACT. THE INCOME FROM SALARY RECEIVED IN UNITED STATES OF AMERICA HAVING BEEN TA XED IN THAT COUNTRY, THE TAX SO COLLECTED AND PAID, ACCORDING TO ASSESSEE OUGHT TO HAVE BEEN ALLOWED DEDUCTION OUT OF TOTAL TAX LIABILITY DETERMINED UNDER INCOME TAX ACT, 1961 WHI CH CONTENTION I FIND FORCE WITH AND DIRECT THE AO TO GIVE CREDIT TO THE TAX PAID IN USA OR EXCLUDE THE SALARY EARNED BY THE ASSESSEE IN USA WHILE COMPUTING THE INCOME TAXABLE IN INDIA. MISTAKE OF FACTS NEED TO BE CORRECTED AND IT IS ORDERED ACCORDINGLY. THEREFORE , THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28TH FEBR UARY, 2020. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED :28TH FEBRUARY, 2020 JD.(SR.P.S.) 4 ITA NO. 1774/KOL/2019 ANURAG DAMANI, AY- 2012-13 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI ANURAG DAMANI, 50-B, GARIAHAT R OAD, GAGAN DEEP BUILDING, 5 TH FLOOR, KOLKATA-700 019. 2 RESPONDENT ITO, WARD-30(1), KOLKATA. 3. 4. 5. CIT(A)-9, KOLKATA. (SENT THROUGH E-MAIL) CIT- , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) BY ORDER, / TRUE COPY, ASSISTANT REGISTRAR