Mr. Ananya Sundar Mondal, Kolkata V. DCIT (International Taxation), cir-1(1)&1(2). Kolkata, Kolkata

ITA 1780/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1168 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 01-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MONDOL
• Keywords: Transfer pricing; Residential status; Salary income
• Section: 5(2)

Judgement Text

IN THE INCOME TAX APPELLATE TR IBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER] I.T.A. NO. 1780/KOL/2017 ASSESSMENT YEAR: 2010-11 MR. ANNANYA SUNDAR MONDAL.. ..APPELLANT FLAT NO. B/3, 1/134, GARIAHAT ROAD (S) JODHPUR PARK KOLKATA- 700 068 [PAN : AJSPM 6664 M] THE DY. COMMISSIONER OF INCOME TAX.. ..RESPONDENT INTERNATIONAL TAXATION CIRCLE-1(1) &1(2) KOLKATA - 107 APPEARANCES BY: NONE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI P.K. MONDOL, ADDL. CIT, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : OCTOBER 16, 2017 DATE OF PRONOUNCING THE ORDER : OCTOBER , 2 017 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-22, KO LKATA (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TA X ACT, 1961 (THE ACT), DT. 16/03/2017, FOR THE ASSESSMENT YEAR 2010-11, ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A)-22, KOLKATA ERRED IN CONFIRMING THE ORDER OF THE DDIT (INTL. TAXN.) CIRCLE- 1(1), KOLKATA, THE A DDITION OF RS.15,49,190/- BEING SALARY RECEIVED BY THE APPELLA NT ON BOARD IN FOREIGN WATERS IN THE CAPACITY OF AN NRI, AND LATER TRANSFERRED TO HIS NRE ACCOUNT IN KOLKATA WITH THE HELP OF MONEY T RANSFERRING AGENTS, AS HIS INCOME FROM SALARY TAXABLE UNDER PRO VISIONS OF SECTION 5(2)(A) OF THE I.T. ACT, 1961. 2 I.T.A. NO. 1780/KOL/2017 ASSESSMENT YEAR: 2010-11 MR. ANNANYA SUNDAR MONDAL 2. THAT THE LD. CIT(A) OVERLOOKED THE DOCUMENTARY E VIDENCES PRODUCED TO PROVE THAT PART OF THE SALARY RECEIVED ON BOARD IN FOREIGN CURRENCY WAS GOT TRANSFERRED TO THE APPELLA NT'S NRE ACCOUNT THROUGH THE AGENTS' BANK ACCOUNTS AND NOT T HROUGH THE EMPLOYER'S BANK ACCOUNT AS ALLEGED BY THE ASSESSING OFFICER. 3. THAT THE LD. CIT(A) WRONGLY RELIED ON THE DECISI ONS OF THE HON'BLE ITAT TO TAX FOREIGN SALARY, WHERE EITHER TH E AMOUNTS WERE DIRECTLY REMITTED BY THE EMPLOYER THROUGH THEI R BANKS TO AN ASSESSEE OR NO EVIDENCES WERE PROVIDED THAT THE ASS ESSEE HAD CONTROL OVER HIS SALARY INCOME IN INTERNATIONAL WAT ERS. 4. THE ORDER OF THE CIT(A) BEING ARBITRARY, WITHOUT ANY BASIS, HAVING BEEN PASSED WITHOUT CONSIDERING THE FACTS AN D DOCUMENTARY EVIDENCES, BE QUASHED AND YOUR APPELLAN T BE GIVEN SUCH RELIEF OR RELIEFS AS PRAYED FOR. 5. THE APPELLANT CRAVES LEAVE TO AMEND, ALTER, MODI FY, SUBSTITUTE, ADD TO, ABRIDGE AND/ OR RESCIND ANY OR ALL OF THE A BOVE GROUNDS. 2. THE LD. COUNSEL FOR THE ASSESSEE APPLIED FOR AN ADJOURNMENT. THE SAME IS REJECTED AS IN MY VIEW, IT IS NOT A FIT CAS E FOR GRANT OF ADJOURNMENT. THE ASSESSEE IS WORKING AS A CREW MEMB ER WITH M/S. INDIAN STEAMSHIP. HE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010-11 DECLARING TOTAL INCOME AT RS.59,581/-, UNDE R THE RESIDENTIAL STATUS - NON-RESIDENT. THE ASSESSEE CLAIMED THE SA LARY INCOME OF RS.15,49,193.55/-, RECEIVED BY HIM AS EXEMPT ON THE GROUND THAT HE IS A NON-RESIDENT IN THE RELEVANT ASSESSMENT YEAR AND TH AT THE MONEY EARNED WAS IN FOREIGN WATERS AND RECEIVED IN FOREIG N CURRENCY. THE ASSESSING OFFICER REJECTED THE CONTENTION OF THE AS SESSEE AND HELD THAT THE ENTIRE SALARY INCOME IS TAXABLE IN INDIA, FOR T HE REASON THAT THE AMOUNT WAS FOUND DEPOSITED IN A BANK ACCOUNT LOCATE D IN INDIA. 2.1. ON APPEAL, LD. FIRST APPELLATE AUTHORITY, HAS APPLIED THE DECISION OF THE ITAT KOLKATA BENCH IN THE CASE OF TAPAS KR. BANDHOPADHYAY VS. 3 I.T.A. NO. 1780/KOL/2017 ASSESSMENT YEAR: 2010-11 MR. ANNANYA SUNDAR MONDAL DDIT (IT) IN ITA NO. 70/KOL/2016 , AND CONFIRMED THE ORDER OF THE ASSESSING OFFICER. FURTHER AGGRIEVED THE ASSESSEE I S IN APPEAL BEFORE US. 3. I FIND THAT THE ISSUE IS NO MORE RES INTEGRA. THE JURISDICTIONAL HIGH COURT IN UTANKA ROY VS. DIRECTOR OF INCOME TAX, INTERNATIONA L TAXATION TRANSFER PRICING , HELD THAT SALARY OF AN INDIAN CITIZEN, WORKING IN A FOREIGN SHIP & RENDERED SERVICES OUTSIDE INDIA FOR A PERIOD OF 286 DAYS IS EXEMPT FROM TAXATION UNDER SECTION 5(2) OF THE I NCOME TAX ACT, 1961. 4. RESPECTFULLY FOLLOWING THE PROPOSITION OF LAW LA ID DOWN IN THIS CASE, I DELETE THIS ADDITION AND ALLOW THE APPEAL O F THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . KOLKATA, THE 31 ST DAY OF OCTOBER, 2017. SD/- [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED :31.10.2017 {SC SPS} 4 I.T.A. NO. 1780/KOL/2017 ASSESSMENT YEAR: 2010-11 MR. ANNANYA SUNDAR MONDAL COPY OF THE ORDER FORWARDED TO: 1. MR. ANNANYA SUNDAR MONDAL FLAT NO. B/3, 1/134, GARIAHAT ROAD (S) JODHPUR PARK KOLKATA- 700 068 2. THE DY. COMMISSIONER OF INCOME TAX INTERNATIONAL TAXATION CIRCLE-1(1) &1(2) KOLKATA 107 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES