Vivekananda Kar, Kolkata V. ADIT (IT)-3(1), Kolkata, Kolkata

ITA 1952/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1593 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 20-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Residential status
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELL ATE TRIBUNAL KOLKATA BENCH, KOLKATA (BENCH D) BEFORE SHRI ABY. T. VARKEY, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER I.T.A. NO.1952/KOL/20 14 ASSESSMENT YEAR 2007-08 ORDER PER M. BALAGANESH , AM THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-VI, KOLKATA VIDE APPEAL NO.35/CIT(A)-VI/ADIT(IT)-3(1)/09-10/KOL DATE D 01.08.2014 AGAINST THE ORDER OF THE ASSESSMENT FRAMED BY ADIT(I.T)-3(1), K OLKATA UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) FOR ASSESSMENT YEAR 2007-08 VIDE HIS ORDER DATED 23.12.2009. 2. THOUGH THE ASSESSEE HAS RAISED SEVERAL GROUNDS, WE FIND THAT THE CENTRAL ISSUE REVOLVES AROUND THE DETERMINATION OF RESIDENTIAL ST ATUS OF THE ASSESSEE WHICH VIVEKANANDA KAR. [PAN : AENPK8173K] -VS- A.D.I.T(I.T)-3(1), KOLKATA (APPELLANT) (RESPONDENT) FOR THE APPELLANT SHRI SOUMITRA CHOUDHURY, ADVOCATE FOR THE RESPONDENT SHRI N. B. SOM, JCIT DATE OF HEARING 09.06.2017 DATE OF PRONOUNCEMENT 07.07.2017 2 I.T.A. NO.1952/KOL/2014 ASSESSMENT YEAR 2007-08 VIVEKANANDA KAR. WOULD ADDRESS THE OTHER GROUNDS AUTOMATICALLY. ACCO RDINGLY, WE REFRAME THE QUESTION RAISED BEFORE US AS BELOW: WHETHER THE ASSESSEE COULD BE CONSTRUED AS A RESID ENT IN THE FACTS AND CIRCUMSTANCES OF THE CASE? 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSES SEE FILED THE RETURN OF INCOME FOR THE A.Y 2007-08 ON 10.08.2007. THE ASSESSEE DERIVED HIS INCOME AS SALARY BY PROVIDING SERVICE TO ONE FOREIGN SHIPPING COMPANY N AMED AS GREAT CIRCLE SHIPPING AGENCY LTD. AND ALSO INTEREST ON POST OFFI CE DEPOSITS. IN THE RETURN, THE ASSESSEE CLAIMED AS RESIDENTIAL STATUS AS NON-RESI DENT. THE LD. A.O HOWEVER ON SCRUTINIZING THE PARTICULARS SUBMITTED BY THE ASSES SEE DURING THE COURSE OF HEARING CAME TO THE CONCLUSION THAT HE STAYED IN INDIA FOR MORE THAN 182 DAYS IN THE RELEVANT PREVIOUS YEAR AND ACCORDINGLY DETERMINED S TATUS OF THE ASSESSEE AS RESIDENT. BASED ON THIS HE HELD THAT THE GLOBAL I NCOME DERIVED BY THE ASSESSEE WOULD BE SUBJECTED TO TAX IN INDIA AND ACCORDINGLY TAXED THE SALARY RECEIVED BY THE ASSESSEE FROM GREAT CIRCLE SHIPPING AGENCY (USD 260 42) AT THE RATE OF RS.43 PER USD) AMOUNTING TO 11,19,806/- AND COMPLETED THE ASS ESSMENT. 4. BEFORE THE LD. CIT(A) THE ASSESSEE CHALLENGED TH E VALIDITY OF THE ASSESSMENT ON JURISDICTION AS WELL AS ON MERITS. THE LD. CIT(A) D ISMISSED THE APPEAL BOTH ON MERITS AS WELL AS ON THE POINT OF JURISDICTION RAIS ED BY THE ASSESSEE. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD. A.R PRODUCED THE TABLE CONTAINING THE NU MBER OF DAYS OF STAY BY THE ASSESSEE IN INDIA, WHICH WORKED OUT TO 181 DAYS AND 20 HOURS. IN HIS OPINION, A DAY MEANS 24 HOURS. ACCORDINGLY, HE ARGUED THAT SIN CE ASSESSEE HAD STAYED FOR LESS THAN 182 DAYS IN INDIA IN THE RELEVANT PREVIOUS YEA R, HIS STATUS HAD TO BE CONSTRUED AS NON-RESIDENT, ACCORDINGLY, THE SALARY RECEIVED FOR SERVICES RENDERED OUTSIDE 3 I.T.A. NO.1952/KOL/2014 ASSESSMENT YEAR 2007-08 VIVEKANANDA KAR. INDIA WOULD NOT BE TAXABLE IN INDIA. THE LD. A.R AL SO PRODUCED THE AIR TICKETS AND OTHER RELEVANT DOCUMENTS TO SUPPORT HIS CONTENTION OF HAVING STAYED IN INDIA ONLY FOR 181 DAYS AND 20 HOURS. IN RESPONSE TO THIS, THE LD. D.R ARGUED THAT THE ASSESSEE HAD QUESTIONED ONLY THE VALIDITY OF JURISDICTION OF THE A.O PASSING THE ORDER ON THE ASSESSEE IN VIEW OF CHANGE OF RESIDENTIAL STATUS BE FORE THE LD. CIT(A). THAT GROUND HAD BEEN DULY ADDRESSED BY THE LD. CIT(A) IN DETAIL. AS LONG AS ASSESSEE HAS NOT CHALLENGED THE SAME BEFORE THIS TRIBUNAL, H E CANNOT RAISE THIS ARGUMENT BY PRODUCING DOCUMENTS RELIED UPON BY HIM. HE ALSO ARG UED THAT DAY REMAINS WHOLE DAY AND DEPARTURE FROM INDIA AND ARRIVAL IN INDIA A RE TO BE COUNTED AS TO SEPARATE THIS. IN DEFENCE, THE LD. AR STATED THAT THE ASSESS EE HAD NOT WITHDRAWN THE OTHER GROUNDS BEFORE THE LD. CIT(A). HE ALSO ARGUED THAT LEGAL ISSUE WHICH GOES TO THE ROOT OF THE MATTER CAN BE RAISED AT ANY POINT OF TI ME. RELIANCE IN THIS REGARD WAS PLACED ON THE DECISION OF HONBLE SUPREME COURT IN NTPC LTD. REPORTED IN 229 ITR 383 (SUPRA). HE ALSO ARGUED THAT THERE IS NO ES TOPPEL AGAINST THE STATUTE AND THE DEPARTMENT CANNOT TAKE ADVANTAGE OF THE IGNORAN CE OF THE PROVISIONS OF INCOME TAX ON THE PART OF THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE LD. AO IN HIS ASSESSMENT ORDER IN PAGE-1, ON THE FACE OF IT, HAD MENTIONED T HE RESIDENTIAL STATUS OF THE ASSESSEE AS NON-RESIDENT. LATER IN THE BODY OF TH E ORDER, HE PROCEEDS TO TREAT THE ASSESSEE AS RESIDENT. WE FIND THAT THE LD. A.O HA D NOT GIVEN ANY FINDING IN HIS ORDER TO SHIFT THE STATUS OF THE ASSESSEE FROM NON -RESIDENT TO RESIDENT BY DULY EXAMINING THE NUMBER OF DAYS STAYED BY THE ASSESSEE IN INDIA WITH REFERENCE TO EACH AND EVERY DATE IN RELEVANT MONTHS. IN OUR CONS IDERED OPINION THAT THIS FINDING ON THE NUMBER OF DAYS OF STAY IN INDIA WOULD BE REL EVANT AND CRUCIAL FOR THE DETERMINATION OF RESIDENTIAL STATUS OF THE ASSESSEE AND DETERMINATION OF INCOME THEREON. HENCE, IN THE INTEREST OF JUSTICE AND FAIR PLAY WE DEEM IT FIT AND 4 I.T.A. NO.1952/KOL/2014 ASSESSMENT YEAR 2007-08 VIVEKANANDA KAR. APPROPRIATE TO SET ASIDE THE ISSUES RAISED BEFORE U S TO THE FILE OF THE LD. A.O FOR DE NOVO ADJUDICATION. THE LD. A.O IS DIRECTED TO REFRA ME THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION THAT THE A SSESSEE BE GIVEN REASONABLE OPPORTUNITY TO BEING HEARD. ACCORDINGLY, THE REFRAM ED QUESTION AS ABOVE AND THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PUR POSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 07.07.2017. SD/- SD/- [ABY. T. VARKEY] [M. BALAGANESH] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07.07.2017 {RS SPS} COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE MR. VIVEKANANDA KAR, BG-107, SECTOR-II, SALT LAKE CITY, KOLKATA 700 091.. 2. REVENUE/RESPONDENT- A.D.I.T(I.T.)-3(1), KOLKATA. 3. CIT(A)- KOLKATA 4. CIT , KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE, DDO, KOLKATA BENCHES, KOLKATA. 5 I.T.A. NO.1952/KOL/2014 ASSESSMENT YEAR 2007-08 VIVEKANANDA KAR.