Sankha Mukherjee , Kolkata V. A.C.I.T.,Circle-2(1), Kolkata

ITA 2108/KOL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9228 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2016-2017
• Appeal Filed On: 11-09-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Double taxation relief; Opportunity of being heard; Set aside
• Section: 143(3); 201; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKAT A BENCH B, KOLKATA [BEFORE SHRI P. M. JAGTAP, HONBLE VICE PRESIDENT & SMT. MADHUMITA ROY, HONBLE JUDICIAL MEMBER] [THROUGH VIRTUAL COURT] ITA NO. 2108/KOL/2019 ASSESSMENT YEAR: 2016-17 SANKHA MUKHERJEE............... ...............................APPELLANT FLAT 7B, WING 2, ORBIT CITY, 82A, RAJA S.C. MULLICK ROAD, KOLKATA 700 047 [PAN : AHRPM 3642 C] A.C.I.T, CIR 2(1) IT, KOLKATA...................... ................................................... ..................RESPONDENT 110, SHANTIPALLY, E.M. BYPASS, KOLKATA 700 107. APPEARANCES BY: SHRI RAM RATAN MODI, CA APPEARING ON BEHALF OF THE ASSE SSEE SMT. RANU BISWAS, ADDL. CIT, APPEARING ON BEHALF OF T HE REVENUE DATE OF CONCLUDING THE HEARING : AUGUST 03, 2020 DATE OF PRONOUNCING THE ORDER : AUGUST 12, 2020 ORDER PER MADHUMITA ROY, JM THE INSTANT APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 27.06.2019 PASSED BY THE LD . CIT(A)- 22, KOLKATA ARISING OUT OF THE ORDER DATED 13.12.2018 P ASSED BY THE ACIT, CIRCLE - 2(1), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR A.Y. 201 6-17 WHEREBY AND WHEREUNDER THE ADDITION OF RS. 2,63,330/- ON THE IN COME FROM FOREIGN ASSET THROUGH THE RETIREMENT PLAN 401(K), DECIDING THE SAME AS TAXABLE IN INDIA HAS BEEN CHALLENGED. 2. THE SHORT FACTS RELATING TO THE ISSUE IS THAT DU RING THE YEAR UNDER CONSIDERATION, THE ASSESSEE MENTIONED THE FOR EIGN INVESTMENT IN SCHEDULE FA OF INCOME TAX RETURN. THE INVESTMENT PERTAINS TO 2 ITA NO. 2108/KOL /2019 ASSESSMENT YEAR 2016-17 SANKHA MUKHERJEE INVESTMENT IN RETIREMENT PLAN 401(K) IN THE UNITED STATES OF AMERICA AS PER THE LAW OF THE COUNTRY. SUCH INVESTMENT WAS MADE WHILE THE ASSESSEE WAS A NRI AND WAS WORKING IN THE UNITED ST ATES AS AN EMPLOYEE OF HSBC. 3. AT THE TIME OF HEARING OF THE INSTANT APPEAL, TH E LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE REVENUE WRONGLY APPLIED ARTICLE 20 OF THE DTAA BETWEEN INDI A AND USA WHEREAS THE CASE OF THE ASSESSEE FALLS UNDER THE PU RVIEW OF ARTICLE 16 OF THE SAID DTAA. ACCORDING TO HIM, THE ALLEGED INC OME HAS NOT ARISEN IN INDIA. MORE SO, NO WITHDRAWAL WAS MADE DURING TH E YEAR UNDER CONSIDERATION BY THE ASSESSEE, NEITHER ANY DIVIDEND OR CAPITAL GAIN WAS EARNED BY THE ASSESSEE. THE MATTER RELATES TO B ENEFIT OF AN INVESTMENT INCOME ARISING OUT OF A PENSION FACILITI ES PROVIDED BY USA GOVERNMENT TO THE ASSESSEE. THE FACT THAT NO REAL I NCOME HAS BEEN RECEIVED NOR ACCRUED FROM SUCH INVESTMENT DURING TH E RELEVANT PREVIOUS YEAR, WAS NOT TAKEN INTO CONSIDERATION IN ITS PROPER PERSPECTIVE BY THE REVENUE WHILE MAKING ADDITION. T HE LEARNED COUNSEL APPEARING FOR THE ASSESSEE PRAYED BEFORE US TO RESTORE THE ISSUE TO THE FILE OF THE LD. AO TO VERIFY THE CLAIM OF THE ASSESSEE AND TO ADJUDICATE THE SAME ON THE BASIS OF THE CASE MADE O UT BY THE ASSESSEE BEFORE THE REVENUE AS ENVISAGED HEREINABOVE AND TO PASS ORDER ACCORDINGLY. SUCH CONTENTIONS, HOWEVER, HAS NOT BEEN OBJECTED B Y THE LD. DR WITH ALL HER FAIRNESS. 4. HENCE, KEEPING IN VIEW THE ENTIRE ASPECT OF THE MATTER, IN ORDER OF RENDER EFFECTIVE JUSTICE, WE FIND IT FIT AND PRO PER TO SET ASIDE THE 3 ITA NO. 2108/KOL /2019 ASSESSMENT YEAR 2016-17 SANKHA MUKHERJEE ISSUE TO THE FILE OF THE LD. AO TO VERIFY THE CLAIM OF THE ASSESSEE UPON GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSE E AND TAKING INTO CONSIDERATION, THE EVIDENCE ON RECORD AND ANY OTHER EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEAR ING OF THE MATTER AND AND TO PASS ORDERS ACCORDINGLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH AUGUST, 2020. SD/- SD/- (P.M. JAGTAP) (MADHUMITA ROY) VICE PRESIDENT JU DICIAL MEMBER DATED: 12/08/2020 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. SHRI SANKHA MUKHERJEE, FLAT 7B, WING 2, ORBIT CITY, 82A, RAJA S.C. MULLICK ROAD, KOLKATA 700 047. 2. ACIT, CIRCLE 2(1), IT, KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR ITAT, KOLKATA