C. Nedumudikilli, CHENNAI V. The Joint CIT (OSD), CHENNAI

ITA 2151/CHNY/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90526 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 29-05-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 12-12-2013
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: R KUMAR
• Keywords: Gift; Search and seizure; Revised return
• Section: 263; 132; 90; 15

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CHE NNAI , . ! ! ! ! , ' ' ' ' #$ #$ #$ #$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.A.NOS.2149, 2150, 2151 & 2152/MDS/2013 & I.T.A. NOS. 1472, 1473, 1474 AND 1475/MDS/2014 ASSESSMENT YEARS :2001-02, 2002-03, 2003-04 AND 2004-05 SHRI C. NEDUMUDIKILLI, NO.2, KAMBAR ST., POSTAL AUDIT COLONY, SALIGRAMAM, CHENNAI 600 093. [PAN: ADFPN4869C] VS. THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE IV(1), CHENNAI. ( %& %& %& %& /APPELLANT ) ( '(%& '(%& '(%& '(%& / RESPONDENT ) %& ) * / APPELLANT BY : SHRI R. KUMAR, ADVOCATE '(%& ) * / RESPONDENT BY : SHRI S. DAS GUPTA, JCIT ) + / DATE OF HEARING : 19.06.2015 ,-. ) + /DATE OF PRONOUNCEMENT : 25.06.2015 / / / / / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : OUT OF THESE EIGHT APPEALS FILED BY THE SAME ASSESS EE FOUR APPEALS [IN I.T.A. NOS. 2149, 2150, 2151 & 2152/MDS/2013] ARE D IRECTED AGAINST THE DIFFERENT ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) (CENTRAL) I, CHENNAI, ALL DATED 30.09.2013 RELEVANT TO THE ASSES SMENT YEARS 2001-02, 2002-03, 2003-04 AND 2004-05 AND THE OTHER FOUR APP EALS [IN I.T.A. NOS. 1472, 1473, 1474 AND 1475/MDS/2014] ARE DIRECTED AG AINST THE DIFFERENT I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 2 ORDERS OF THE LD. COMMISSIONER OF INCOME TAX, CENTR AL I, CHENNAI ALL DATED 28.03.2014 FOR THE ABOVE ASSESSMENT YEARS. 2. A SEARCH AND SEIZURE OPERATION UNDER SECTION 13 2 OF THE INCOME TAX ACT WAS CARRIED OUT IN THE RESIDENCE OF SHRI C. NED UMUDIKILLI ON 11.10.2006. CONSEQUENT TO THE SEARCH, A NOTICE UNDER SECTION 15 3A OF THE ACT DATED 10.03.2008 SERVED ON THE ASSESSEE. IN RESPONSE TO T HAT, THE ASSESSEE HAS FILED RETURN OF INCOME ON 22.07.2008 ADMITTING TOTA L INCOME OF .1,45,000/- CLAIMING HIMSELF TO BE A RESIDENT. DURING THE COURS E OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FILED ANOTHER RETURN OF INCOME DATED 25.11.2008 ADMITTING TOTAL INCOME OF .58,64,292/- INCLUDING THEREIN THE FOLLOWING: GIFT FROM UNCLE VIDE LETTER DATED 07.11.2008 . 94,640/- DRAWINGS . 1,44,000/- INCOME FROM CANADA . 54,80,652/ - IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAS CLAIMED HIMSELF TO BE A RESIDENT FOR T HE ASSESSMENT YEAR IN THE ORIGINAL RETURN OF INCOME FILED. FROM THE EVIDE NCE FILED, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE WAS HAVING FOREIG N INCOME, WHICH SHOULD ALSO BE TAKEN INTO ACCOUNT WHILE COMPUTING THE TOTA L INCOME OF THE ASSESSEE. WHEN THE QUERY WAS RAISED, ON 25.11.2008, THE ASSE SSEE FILED A REVISED RETURN OF INCOME ADMITTING INCOME OF .58,64,290/- INCLUDING THEREIN THE ABOVE PROPOSED ADDITIONS BY WAY OF GIFT OF .94,640/- AND INADEQUATE I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 3 DRAWINGS OF .1,44,000/-, BESIDES INCLUDING INCOME OF .54,80,652/- BY WAY OF INCOME FROM CANADA. IN SUPPORT OF FOREIGN INCOME , THE ASSESSEE FILED COPIES OF NOTICE OF ASSESSMENT ISSUED BY THE CANADI AN TAX AUTHORITIES. THE ASSESSEE CLAIMED RELIEF UNDER SECTION 90 OF TH E ACT AND AFTER VERIFICATION OF THE CALCULATIONS; THE ASSESSING OFF ICER COMPLETED THE ASSESSMENT. 3. THE LD. CIT, WHILE EXERCISING POWER UNDER SECTI ON 263 OF THE ACT, HAS OBSERVED THAT FOR THE ASSESSMENT YEAR 2001-02, THE ASSESSEE HAS FILED RETURN OF INCOME ORIGINALLY ON 22.07.2008 ADMITTING INCOME OF .1,45,000/-. DURING THE COURSE OF ASSESSMENT, PROMPTED BY THE QU ERIES OF THE ASSESSING OFFICER ON THE CLAIM OF FOREIGN REMITTANCE, THE ASS ESSEE HAS FILED ANOTHER RETURN OF INCOME ON 25.11.2008 ADMITTING FOREIGN IN COME OF .54,80,652/-. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS MADE A CLAIM OF HAVING EARNED INCOME ABROAD, WHICH WAS SUBJECTED TO TAXATION BY CANADA REVENUE AGENCY AND HAD CLAIMED TAX CREDIT OF .18,95,279/- IN RESPECT OF THE INCOME INCLUDED IN THE GLOBAL INCOME BROUGHT T O TAX. 4. THE ASSESSING OFFICER HAD ALLOWED THE CLAIM OF THE ASSESSEE PRIMA FACIE ON THE BASIS OF THE DOCUMENTARY EVIDENCE SUBM ITTED BY THE ASSESSEE. THE LD. CIT FURTHER OBSERVED THAT AFTER A DETAILED ENQUIRY AND INFORMATION AVAILABLE ON RECORD SHOWS THAT THE CLAIM OF THE ASS ESSEE HAVING EARNED INCOME IN CANADA AND ON WHICH HE HAD PAID TAXES WER E FOUND TO BE FALSE. I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 4 THEREFORE, THE LD. CIT CAME TO A CONCLUSION THAT TH E ASSESSEE IS NOT ENTITLED FOR THE TAX CREDIT AS CLAIMED BY THE ASSESSEE AND O BSERVED THAT THE PRIMA FACIE ORDER PASSED BY THE ASSESSING OFFICER IS ERRO NEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND SHOW CAUSED THE ASSESSE E AS TO WHY THE TAX CREDIT GIVEN IN THE ASSESSMENT ORDER MAY NOT BE WIT HDRAWN. IN RESPONSE TO THAT, THE ASSESSEE HAS FURNISHED THE FOLLOWING INFO RMATION VIDE HIS LETTER DATED 13.01.2011: (I) COPIES OF THE PASSPORT ISSUED BY THE CANADIAN G OVERNMENT FOR THE PERIOD 13.03.1995 TO 13.03.2000, 30.03.2000 TO 30.0 3.2005 AND 12.10.2004 TO 12.10.2009. (II) FOREIGN BANK A/C COPY FOR THE PERIOD 01.04.200 2 TO 17.04.2002. (III) DRIVING LICENCE COPY. (IV) SOCIAL SECURITY NO. (V) INCOME TAX RETURN COPIES OF HIS WIFE SMT. BALA SOUNDARIKILLI FOR THE YEARS 2000, 2001 AND 2002. (VI) AFFIDAVIT FROM SHRI SIVAKUMAR FOR TRANSFER OF FUNDS ON 09.08.2001. (VII) DEATH CERTIFICATE OF SHRI DHANABALASINGAM WHO HAS REMITTED MONEY TO HIS ACCOUNT. (VIII) INVESTMENT A/C. AS ON 30.12.2003 AND 30.06.2 003. THEREAFTER, THE LD. CIT, AFTER RECEIVING THE ABOVE INFORMATION FORWARDED TO THE DIRECTOR, FOREIGN TAXATION DIVISION, CBDT, NEW DELHI WITH A REQUEST THAT IN THE LIGHT OF THE FRESH INFORMATION FURNISHED BEF ORE HIM, THE SAME MAY BE TRANSMITTED TO THE CANADA REVENUE AGENCY FOR NECESS ARY VERIFICATION. THE VERIFICATION REPORT FROM THE CANADA REVENUE AGENCY HAS NOT BEEN RECEIVED IN TIME AND SINCE THE PROCEEDINGS UNDER SECTION 263 ARE GETTING TIME BARRED BY 31.03.2001, THE PROCEEDINGS ARE CONCLUDED BY SET TING ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION FOR FRESH CONSIDERATION IN I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 5 ACCORDANCE WITH LAW ON RECEIPT OF THE REPORT FROM T HE CANADA REVENUE AGENCY. 5. CONSEQUENT TO THE ORDER PASSED BY THE LD. CIT U NDER SECTION 263 OF THE ACT DATED 30.03.2011, THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT ON 14.12.2011. AS PART OF THE PROCEEDING S UNDER SECTION 263 OF THE ACT BY THE LD. CIT, THE ASSESSEE WAS GIVEN A SH OW CAUSE NOTICE DATED 18.11.2010 AS TO WHY THE CREDIT FOR TAXES ON THE CA NADIAN INCOME CLAIMED TO HAVE BEEN PAID AND GIVEN EFFECT TO IN THE ASSESSMEN T ORDER MAY NOT BE WITHDRAWN. IN RESPONSE TO THE NOTICE, THE ASSESSEE MADE A WRITTEN SUBMISSIONS VIDE LETTER DATED 13.01.2011 ALONG WITH COPY OF ANOTHER SET OF DOCUMENTS WHICH FORMS PART OF THE ORDER AS ANNEXURE A AND PLEADED THAT I HAVE ENTRUSTED THE JOB OF GETTING DETAILS FROM CANA DA THROUGH A PERSON. WHATEVER THE STATEMENT RECEIVED FROM HIM HAS BEEN SUBMITTED DURING THE COURSE OF ASSESSMENT. I CAME TO UNDERSTAND THAT THE INFORMATI ON WAS FALSE ONLY AFTER RECEIVING YOUR LETTER. I AM HONESTLY UNAWARE OF ABOVE PAPERS AND THE SAME HAS BEEN FILED INADVERTENTLY. I HAD SO MANY FAMILY ISSUES, MY MOTH ERS ILL HEALTH, WHO UNDERWENT MAJOR HEART PROBLEM, ETC., WHICH PREVENTED ME FROM CONCENTRATING THE PAPERS SUBMITTED BY ME. HE FURTHER CONTENDED BEFORE THE ASSESSING OFFICER THAT HIS STATUS WAS MISTAKENLY MENTIONED AS RESIDENT AND H E FILED SOME DOCUMENTS BEFORE THE ASSESSING OFFICER. I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 6 6. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS OBSERVED THAT AS PART OF THE PROCEEDINGS UNDER SECTION 263, THE ASSE SSEE HAD CONTENDED THAT IN THE RETURN OF INCOME FILED PRIOR TO THE DATE OF SEARCH AND IN THE RETURN FILED AFTER THE DATE OF SEARCH, THE STATUS WAS MISTAKENLY MENTIONED AS RESIDENT. IN SUPPORT OF HIS CONTENTION, HE HAD FILED COPIES O F THE PASSPORT FOR THE RELEVANT PREVIOUS YEARS WHICH WERE FORWARDED ALONG WITH THE ORDER UNDER SECTION 263 DATED 30.03.2011. AS PART OF THE ENSUIN G PROCEEDINGS, THE ASSESSEE FILED ONCE AGAIN COPIES OF THE PASSPORTS F OR THE RELEVANT PREVIOUS YEARS TOGETHER WITH THE ORIGINAL PASSPORTS (3 NOS.) FOR PERUSAL AND RETURN. THE RELEVANT DETAILS REGARDING THE PERIOD OF STAY O F THE ASSESSEE RIGHT FROM THE ASSESSMENT YEAR 1996-97 WERE VERIFIED. THE SAID DETAILS FORM PART OF THE ASSESSMENT ORDER AS ANNEXURE B. ON THE BASIS OF THE PERIOD OF STAY OF THE ASSESSEE IN INDIA DURING THE RELEVANT PREVIOUS YEAR AS WELL AS IN THE EARLIER PREVIOUS YEARS, IT IS CLEAR THAT THE STATUS OF THE ASSESSEE IS NON-RESIDENT. THEREFORE, THE ASSESSING OFFICER FINALLY CONCLUDED BY DECLARING THAT THE ASSESSEE AS A NON-RESIDENT AND COMPLETED THE ASSE SSMENT. 7. THE LD. CIT, WHILE EXERCISING POWER UNDER SECTI ON 263 OF THE ACT, AFTER OBSERVING THE ENTIRE FACTS, CAME TO A CONCLUSION TH AT THE ASSESSING OFFICER HAS CHANGED THE STATUS OF THE ASSESSEE FROM RESIDEN T TO NON-RESIDENT AND THE ORDER PASSED BY THE ASSESSING OFFICER AGAIN IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND ISSUED NOTICE TO THE ASSESSEE DATED I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 7 28.02.2014. IT WAS SUBMITTED BEFORE THE LD. CIT THA T THE ASSESSMENT ORDER IS NOT ERRONEOUS AND NO PREJUDICE CAUSED TO THE REVENU E AND HENCE PRAYED THAT 263 PROCEEDINGS MAY BE DROPPED. 8. THE LD. CIT, AFTER CONSIDERING THE EXPLANATIONS OF THE ASSESSEE, HAS OBSERVED THAT THE ASSESSMENT WAS TAKEN UP FOR REVIE W SINCE THE TAX CREDIT UNDER SECTION 90 OF THE ACT RELATING TO CANADIAN IN COMES WAS WRONGLY ALLOWED. AS THERE WAS NO PROPER DOCUMENTATION FOR T HE CANADIAN INCOMES EARNED AND TAXES PAID THEREON, THE ASSESSMENT HAS B EEN SET ASIDE UNDER SECTION 263 TO RE-EXAMINE THIS ISSUE BY CONDUCTING NECESSARY ENQUIRIES WITH THE CANADA REVENUE AGENCY THROUGH DIRECTOR, FOREIGN TAXATION DIVISION, CBDT. HENCE, THE ASSESSING OFFICER SHOULD HAVE CONF INED HIMSELF TO THIS ISSUE ALONE. HOWEVER, THE ASSESSING OFFICER HAS GON E INTO THE STATUS OF THE ASSESSEE AND CHANGED THE STATUS FROM RESIDENT TO NO N-RESIDENT WHICH IS NOT THE MANDATE GIVEN TO THE ASSESSING OFFICER IN THE P ROCEEDINGS SETTING ASIDE THE ASSESSMENT UNDER SECTION 263. THIS HAS RESULTED IN NON-ASSESSING THE CANADIAN INCOMES IN INDIA. BESIDES, THE SOURCES FOR REMITTANCES EMANATING FROM SUCH CANADIAN INCOME WERE NOT EXAMINED. THEREF ORE, THE LD. CIT HAS HELD THAT THE ORDER OF THE ASSESSING OFFICER FOR TH E ASSESSMENT YEAR 2001-02 WAS PREJUDICIAL AND ULTRA VIRES. 9. THE LD. CIT CAME TO A CONCLUSION THAT EVEN THOU GH THE ASSESSEE FURNISHED MATERIALS SUCH AS PASSPORT AND DETAILS OF STAY IN CANADA, BEFORE I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 8 THE ASSESSING OFFICER, THE ASSESSING OFFICER OUGHT NOT TO HAVE BEEN DECIDED THE STATUS OF THE ASSESSEE IN THE REASSESSMENT PROC EEDINGS FOR THE REASON THAT THE ISSUE REMITTED BY THE LD. CIT UNDER SECTIO N 263 IS NOT TO DECIDE THE STATUS OF THE ASSESSEE. ACCORDINGLY, THE LD. CIT SE T ASIDE THE REASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AGAIN AND DIR ECTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT AS INDICATED BY THE LD. CIT AT PAGE 5 OF THE 263 ORDER DATED 28.03.2014. 10. ON BEING AGGRIEVED, THE ASSESSEE CARRIED THE M ATTER IN APPEAL BEFORE THE TRIBUNAL. 11. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS NOT ERRONEOUS OR PREJUD ICE TO THE INTEREST OF THE REVENUE. THE LD. CIT HAS SET ASIDE THE ASSESSMENT O RDER ON THE GROUND THAT THE PROCEEDINGS UNDER SECTION 263 ARE GETTING TIME BARRED. THEREFORE, IT CANNOT BE SAID THAT THE ORDER PASSED BY THE ASSESSI NG OFFICER IS ERRONEOUS AND PREJUDICE TO THE INTEREST OF THE REVENUE. HE FU RTHER SUBMITTED THAT ONCE THE LD. CIT SET ASIDE THE ORDER OF THE ASSESSING OF FICER AND DIRECTED HIM TO PASS A FRESH ORDER IN ACCORDANCE WITH LAW, IT IS OP EN TO THE ASSESSING OFFICER TO CONSIDER ALL THE ISSUES AND ACCORDINGLY, THE ASS ESSING OFFICER HAS RIGHTLY DECIDED THE STATUS OF THE ASSESSEE AS NON-RESIDENT. FOR THAT, HE RELIED ON THE DECISION IN THE CASE OF CIT V. GEO INDUSTRIES & INSECTICIDES (I) PVT. LTD. 234 ITR 541 (MAD). I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 9 12. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED TH AT THE LD. CIT, WHILE EXERCISING POWER UNDER SECTION 263 OF THE ACT, REMI TTED THE MATTER BACK TO THE ASSESSING OFFICER IN THE CONTEXT OF TAX CREDIT CLAIMED BY THE ASSESSEE UNDER SECTION 90 OF THE ACT. THE ASSESSING OFFICER SHOULD HAVE CONFINED TO THE CONTEXT IN WHICH IT WAS REMITTED BACK TO THE AS SESSING OFFICER AND HE FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS EX CEEDED HIS LIMIT BY CHANGING THE STATUS OF THE ASSESSEE FROM RESIDENT T O NON-RESIDENT. THEREFORE, THE LD. DR HAS SUBMITTED THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS BEYOND HIS JURISDICTION AND HE STRONGLY SUPPORTED THE ORDER PASSED BY THE LD. CIT AGAIN UNDER SECTION 263 OF THE ACT. 13. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIAL S ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THERE WAS A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT CARRIED OUT IN THE RESIDENCE OF THE ASSESSEE. SUBSEQUENTLY, A NOTICE UNDER SECTION 153 WAS ISSUED AND RETURN WAS ALSO FILED. THE ASSESSEE, ORIGINALLY ADMITTED A N INCOME OF .1,45,000/- BY CLAIMING HIMSELF AS RESIDENT. AGAIN HE REVISED H IS RETURN OF INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS ADMITTING AN I NCOME OF .58,64,292/- WITHOUT CHANGING HIS STATUS. IN THE ASSESSMENT PROC EEDINGS, THE ASSESSEE HAS CLAIMED TAX CREDIT UNDER SECTION 90 OF THE ACT AND THE ASSESSING OFFICER HAS ALLOWED THE CLAIM OF THE ASSESSEE WITHOUT EXAMI NING WHETHER THE ASSESSEE IS ELIGIBLE OR NOT. I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 10 14. SUBSEQUENTLY, THE LD. CIT, WHILE EXERCISING PO WER UNDER SECTION 263 AND AFTER DETAILED ENQUIRY, HE FOUND THAT THE DETAI LS FILED BY THE ASSESSEE WITH REGARD TO THE CLAIM OF TAX CREDIT ARE FALSE. S UBSEQUENT TO THE ORDER UNDER SECTION 263, THE ASSESSEE FILED DETAILS THROU GH HIS LETTER DATED 13.01.2011. THE PROCEEDINGS ARE CONCLUDED BY SETTIN G ASIDE THE ABOVE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A D IRECTION FOR FRESH CONSIDERATION IN ACCORDANCE WITH LAW ON RECEIPT OF DETAILS FROM CANADA REVENUE AGENCY. CONSEQUENT TO THE 263 ORDER PASSED BY THE LD. CIT, THE ASSESSING OFFICER HAS CONCLUDED THE REASSESSMENT BY ORDER DATED 14.12.2011. WHEN THE ASSESSING OFFICER CALLED EXPLA NATION FROM THE ASSESSEE WITH REGARD TO EARLIER INFORMATION FILED, WHICH WAS FOUND FALSE BY THE LD. CIT, IT WAS SUBMITTED BY THE ASSESSEE WITH REGARD TO THE EARLIER INFORMATION THAT HE HAS ENTRUSTED THE JOB OF GETTIN G PAPERS FROM CANADA THROUGH A PERSON AND WHATEVER PAPERS HE HAS COLLECT ED WERE FILED BEFORE THE ASSESSING OFFICER. THEREFORE, THE MISTAKE COMMI TTED INADVERTENTLY AND HE FILED PASSPORT COPIES BEFORE THE ASSESSING OFFIC ER. THE ASSESSING OFFICER, AFTER CONSIDERING THE PASSPORT COPIES, CAME TO A CO NCLUSION THAT THE ASSESSEE IS A NON-RESIDENT. 15. THE ASSESSEE HAS FILED THE RETURN OF INCOME AS RESIDENT AND SUBSEQUENTLY ALSO HE FILED THE REVISED RETURN DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS CLAIMING AS RESIDENT. WHEN T HE ORDER OF THE ASSESSING OFFICER WAS SET ASIDE IN RESPECT OF ISSUE IS RELATING TO THE CLAIM OF I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 11 TAX CREDIT UNDER SECTION 90 OF THE ACT, THE ASSESSI NG OFFICER WENT ALTOGETHER INTO A DIFFERENT FOOTING AND CHANGED THE STATUS OF THE ASSESSEE AS NON- RESIDENT. THE LD. CIT HAS REMITTED THE MATTER BACK TO THE ASSESSING OFFICER SPECIFICALLY WITH REGARD TO THE CLAIM OF TAX CREDIT UNDER SECTION 90 OF THE ACT AND WHEN THE INFORMATION FILED BY THE ASSESSEE WAS FOUND FALSE, AGAIN FRESH INFORMATION WAS FILED AND THE ASSESSING OFFICER WAS DIRECTED TO PASS FRESH ASSESSMENT ORDER AFTER RECEIVING DETAILS FROM CANAD A REVENUE AGENCY. THE ASSESSING OFFICER, WITHOUT FOLLOWING THE DIRECTIONS OF THE LD. CIT, BY SIMPLY CHANGING THE STATUS OF THE ASSESSEE, ALLOWED THE CL AIM OF THE ASSESSEE, IN OUR OPINION, THE ORDER PASSED BY THE ASSESSING OFFI CER DATED 14.12.2011 IS BEYOND HIS JURISDICTION AND THE ASSESSING OFFICER E XCEEDED HIS LIMITS WITHOUT CONSIDERING THE ORDER OF THE LD. CIT PASSED UNDER S ECTION 263 OF THE ACT DATED 30.03.2011. THUS, THE ORDER PASSED BY THE ASS ESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E. 16. SO FAR AS CASE LAW RELIED ON BY THE LD. COUNSE L FOR THE ASSESSEE IN THE CASE OF CIT V. GEO INDUSTRIES & INSECTICIDES (I) PV T. LTD. (SUPRA) IS CONCERNED, THE HONBLE JURISDICTIONAL HIGH COURT HA S OBSERVED THAT THE CIT UNDER SECTION 263 OF THE ACT, AFTER EXAMINING THE R ECORDS AND AFTER MAKING AN ENQUIRY, IS EMPOWERED TO PASS SUCH ORDERS AS THE CIRCUMSTANCES OF THE CASE WOULD JUSTIFY AND HE MAY PASS N ORDER ENHANCIN G THE ASSESSMENT, HE CAN MODIFY THE ASSESSMENT OR HE MAY CANCEL THE ASSE SSMENT AND DIRECT FOR A FRESH ASSESSMENT. THE CIT IN THE INSTANT CASE HAS SET ASIDE THE I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 12 ASSESSMENT DIRECTING THE ITO TO MAKE A FRESH ASSESS MENT IN ACCORDANCE WITH LAW SO AS TO EXCLUDE THE LOSSES OF THE CASHEW DEPARTMENT AND HESSIAN DEPARTMENT (IF ANY) AFTER GIVING ADEQUATE OPPORTUNI TY TO THE ASSESSEE. THE ORDER OF THE CIT SETTING ASIDE THE ASSESSMENT HIS D IRECTION TO MAKE A FRESH ASSESSMENT IN ACCORDANCE WITH LAW CANNOT BE READ IN ISOLATION, BUT, IT MUST BE READ IN THE CONTEXT IN WHICH THE CIT HAS EXERCIS ED HIS POWERS OF REVISION. IN THE PRESENT CASE, THE LD. CIT HAS EXERCISED HIS POWER IN THE CONTEXT OF TAX CREDIT CLAIMED BY THE ASSESSEE UNDER SECTION 90 OF THE ACT. THE STATUS OF THE ASSESSEE AS TO WHETHER RESIDENT OR NON-RESIDENT IS NOT BEFORE THE LD. CIT. THEREFORE, THE DECISION OF THE HONBLE JURISDICTION AL HIGH COURT SUPPORT THE ORDER PASSED BY THE LD. CIT DATED 28.03.2014. 17. THEREFORE, IN VIEW OF THE ABOVE FACTS AND CIRC UMSTANCES, THE LD. CIT, BY ORDER DATED 28.03.2014, CORRECTLY EXERCISED HIS POWER UNDER SECTION 263 AND AGAIN SET ASIDE THE ORDER PASSED BY THE ASSESSI NG OFFICER. THUS, WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LD. CI T. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 18. FOR THE ASSESSMENT YEARS 2002-03, 2003-04 AND 2004-05 ALSO, THE FACTS AND THE ISSUE RAISED ARE SIMILAR AND IDENTICA L TO THE FACTS AND ISSUE RAISED IN THE ASSESSMENT YEAR 2001-02. ACCORDINGLY, THE APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2002-03, 2003-04 AND 2004-05 ARE ALSO DISMISSED. I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .2149 2149 2149 2149- -- -2152 2152 2152 2152/M/ /M/ /M/ /M/13 & 13 & 13 & 13 & I.T.A. NOS I.T.A. NOS I.T.A. NOS I.T.A. NOS.1472 .1472 .1472 .1472- -- -1475/M/14 1475/M/14 1475/M/14 1475/M/14 13 I.T.A.NOS.2149, 2150, 2151 & 2152/MDS/2013 19. THESE APPEALS ARE EMANATED FROM THE ORDER OF T HE ASSESSING OFFICER, WHICH IS SUBJECTED TO ORDER PASSED UNDER SECTION 26 3 OF THE ACT BY THE LD. CIT DATED 28.03.2014. FOR THE VERY SAME ASSESSMENT YEARS ON WHICH 263 WAS INVOKED AND THE ASSESSMENT ORDERS WERE CANCELLE D BY THE LD. CIT UNDER SECTION 263 AND THE SAME WAS UPHELD BY THE TRIBUNAL HEREINABOVE. IN VIEW OF THAT, THESE APPEALS CANNOT SURVIVE. THEREFORE, A LL THE APPEALS OF THE ASSESSEE ARE DISMISSED. 20. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE ARE DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 25 TH OF JUNE, 2015 AT CHENNAI. SD/ - SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER CHENNAI, DATED, THE 25.06.2015 VM/- / ) ''+01 21.+ /COPY TO: 1. %& / APPELLANT, 2. '(%& / RESPONDENT, 3. 3 ( ) /CIT(A), 4. 3 /CIT, 5. 14 ''+' /DR & 6. 5! 6 /GF.