Sridhar Ganesh, CHENNAI V. JCIT, CHENNAI

ITA 1876/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64669 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 22-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GUR U BASHYAM SR
• Assessee Lawyers: M KARUNAKARAN
• Keywords: Additional evidence
• Section: 90

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P.GEORGE, ACCOUNTANT ME MBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.1876/MDS/2012 (ASSESSMENT YEAR: 2009-10) SHRI SRIDHAR GANESH, 2/6, WITHYPOOL COMPLEX, 213, BOAT CLUB ROAD, R.A.PURAM, CHENNAI-600 028. PAN:ALLPS5932M VS. THE JOINT COMMISSIONER OF INCOME TAX, SALARY RANGE VI, CHENNAI-34. (APPELLANT) (RESPONDENT) APPELLANT BY : MR. M.KARUNAKARAN, ADVOCATE RESPONDENT BY : MR. GUR U BASHYAM, SR.AR DATE OF HEARING : 17 TH DECEMBER, 2012 DATE OF PRONOUNCEMENT : 17 TH DECEMBER, 2012 O R D E R PER VIKAS AWASTHY, JM: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE IMPUGNIN G ORDER DATED 31 ST JULY, 2012 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-VI, CHENNAI, RELEVANT TO THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 30.7.2009 ADMITTING TOTA L INCOME OF ` 1,44,34,880/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143( 2) OF THE ITA NO.1876/MDS/2012 2 INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) WAS ISSUED TO THE ASSESSEE ON 20.09.2010. THE ASSE SSING OFFICER VIDE ASSESSMENT ORDER DATED 29.12.2011 MADE CERTAIN ADDITIONS IN THE INCOME RETURNED BY THE ASSESSEE ON ACCOUNT OF LONG TERM CAPITAL GAINS. 3. ONE OF THE GROUNDS ON WHICH THE ASSESSING OFFIC ER MADE ADDITION IS THAT DURING THE YEAR THE ASSESSEE SOLD SHARES OF CADBURY IN UK AND RECEIVED SALE CONSIDERA TION IN GREAT BRITAIN POUNDS. THE SAID SHARES WERE PURCHASE D ON 2.4.2005. THE SHARES WERE SOLD BY THE ASSESSEE ON 11.8.2008. AS PER THE CONTENTIONS OF THE ASSESSEE, THE UK GOVERNMENT LEVIED TAX OF GREAT BRITAIN POUNDS 6724. 17 ON THE PROFIT ON SALE OF AFORESAID SHARES. THE BALANCE SALE PROCEEDS I.E. 28821.34 GREAT BRITAIN POUNDS WERE RE MITTED. THE ASSESSEE SUBMITTED THAT SINCE TAX HAS ALREADY B EEN LEVIED ON THE SALE PROCEEDS OF SHARES, UNDER ARTIC LE 24 OF DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN UK AND INDIA THE ASSESSEE IS ENTITLED TO RELIEF ON THE CA PITAL GAINS OF ` 23,66,784/- = GB 28821.34. THE ASSESSEE REQUESTED THE ASSESSING OFFICER TO GIVE CREDIT FOR THE UK TAX PAI D UNDER ITA NO.1876/MDS/2012 3 SECTION 90 OF THE INCOME TAX ACT. THE ASSESSING OF FICER HELD THAT SINCE THE ASSESSEE HAS NOT PRODUCED ANY EVIDEN CE THAT THE TAX HAS BEEN PAID BY THE ASSESSEE IN UK, NO REL IEF IS ALLOWED UNDER SECTION 90 OF THE ACT. AGGRIEVED AGAINST THE ASSESSMENT ORDER, THE ASSESS EE PREFERRED AN APPEAL BEFORE THE CIT(A). THE CIT(A) V IDE ORDER DATED 31.7.2012 HELD THAT THE NATURE OF EVIDENCE SU BMITTED BY THE ASSESSEE ARE INDIRECT AND THE EVIDENCE WHICH IS REQUIRED TO SUBSTANTIATE THE CLAIM IS REMITTANCE OF THE SAID SUM TO THE TREASURY OF UK WHICH THE APPELLANT IS NOT IN A POS ITION TO FURNISH. THE CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. NOW, THE ASSESSEE HAS COME IN SECOND APPEAL BEFORE THE TRIBUNAL ASSAILING THE ORD ER OF THE CIT(A). 4. SHRI M.KARNAKARAN APPEARING ON BEHALF OF THE ASS ESSEE SUBMITTED THAT WHATEVER EVIDENCE AVAILABLE WITH THE ASSESSEE AT THE TIME OF ASSESSMENT AND FILING OF APPEAL BEFO RE THE CIT(A) WERE PRODUCED BEFORE THE RESPECTIVE TAX AUT HORITIES. THE COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ASS ESSING OFFICER IN THE ASSESSMENT ORDER HAS MENTIONED THE F ACT THAT ITA NO.1876/MDS/2012 4 THE ASSESSEE HAS PAID TAX IN UK AMOUNTING TO GB POU NDS 6724.17. THE SAID SUM HAS BEEN DEDUCTED FROM THE S ALE PROCEEDS AND ONLY BALANCE AMOUNT HAS BEEN PAID TO T HE ASSESSEE. THE COUNSEL CONTENDED THAT NOW THE ASSES SEE IN ORDER TO SUBSTANTIATE HIS CLAIM WANTS TO PLACE ON R ECORD A LETTER FROM THE COMPANY CONFIRMING THAT THE AMOUNT OF TAX HAS BEEN DEPOSITED WITH THE AUTHORITIES CONCERNED. THE COUNSEL FOR THE ASSESSEE STATED THAT THE SAID LETTER HAS BE EN RECENTLY RECEIVED BY THE ASSESSEE. THIS LETTER WAS NOT EARLI ER AVAILABLE AT THE TIME OF ASSESSMENT OR APPEAL BEFORE THE FIRS T APPELLATE AUTHORITY. 5. ON THE OTHER HAND, SHRI GURU BASHYAM APPEARING O N BEHALF OF THE REVENUE SUBMITTED THAT THE ASSESSEE H AS FAILED TO PRODUCE ANY CONCRETE EVIDENCE TO SHOW THAT THE A MOUNT DEDUCTED ON THE SALE PROCEEDS OF THE SHARES HAVE BE EN ACTUALLY REMITTED TO THE TREASURY. THE DR STRONGLY SUPPORTED THE ORDER OF THE CIT(A) ON THE ISSUE. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF BOTH THE PARTIES. WE HAVE ALSO P ERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE COUNSEL FOR TH E ASSESSEE ITA NO.1876/MDS/2012 5 WANTS TO PLACE ON RECORD A LETTER AS AN ADDITIONAL EVIDENCE IN SUPPORT OF HIS CONTENTION THAT THE AMOUNT DEDUCTED AS TAX ON THE SALE OF SHARES HAS ACTUALLY BEEN DEPOSITED IN T HE TREASURY. IN THE INTEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO REMIT THE MATTER BACK TO THE FILE OF ASSESSING OFFICER TO TAK E THE ADDITIONAL EVIDENCE ON RECORD, WHICH THE ASSESSEE W ANTS TO SUBMIT IN SUPPORT OF HIS CLAIM. THE ASSESSING OFFIC ER IS DIRECTED TO VERIFY THE AUTHENTICITY AND VERACITY O F THE LETTER AND THEREAFTER PROCEED IN ACCORDANCE WITH LAW IN D ETERMINING WHETHER THE ASSESSEE IS ENTITLED FOR BENEFIT UNDER SECTION 90 OF THE ACT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON MONDAY, THE 17 TH DAY OF DECEMBER, 2012 AT CHENNAI. SD/- SD/- (ABRAHAM P.GEORGE) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 17 TH DECEMBER, 2012. SOMU COPY TO: (1) APPELLANT (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.