DCIT, Circle - 48 (1), New Delhi V. Karan Bihari Thapar, New Delhi

ITA 2440/DEL/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9523 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 27-01-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 02-07-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Assessee Lawyers: SUNIL MOHAN BUCKSHEE
• Keywords: Double taxation relief; Opportunity of being heard
• Section: 2

Judgement Text

ITA NO. 2438, 2439 & 2440/DEL/2008 A.YRS. 2000-01,2002-03 & 2003-04 1 IN THE INCOMETAX APPELATE TRIBUNAL DELHI BENCH D: NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NOS. 2438, 2439 & 2440/DEL/2008 A.YRS. : 2000-01, 2002-03 & 2003-04 DCIT, CIRLC-48(1), VS. SH. KARAN BIHARI TH APAR, ROOM NO. 624, MAYUR BHAVAN, 2A/2, PALAM MARG, VAS ANT VIHAR, NEW DELHI NEW DELHI (PAN: AAEPT2939D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUNIL MOHAN BUCKSHEE, CA DEPARTMENT BY : SHRI B.K. GUPTA, SR. DR O R D E R PER BENCH THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST THE COMMON ORDER OF LD. CIT(A) DATED 15.4.2008 FOR THE CONCERN ED ASSESSMENT YEARS. 2. THE FIRST COMMON ISSUE RAISED IS THAT THE LD. CI T(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF PENSION RECEIVE D FROM M/S NEST WEST STAFF PENSION FUND, UK. 3. DURING THE ASSESSMENT PROCEEDINGS IN THESE CASES THE AO NOTED THAT ASSESSEE HAS NOT DISCLOSED THE PENSION RECEIPT S FROM HIS LATE WIFES EMPLOYER M/S NEST WEST STAFF PENSION FUND AND INTER EST ON PENSION FROM LLOYDS BANK JERSEY. AO FURTHER NOTICED THAT R ESIDENTIAL STATUS OF THE ASSESSEE WAS R&OR, THEREFORE, HIS GLOBAL INCOM E WAS TAXABLE IN INDIA. IN RESPONSE THE ASSESSEE FILED REVISED RET URN IN ITS2E AND CLAIMED THAT THE PENSION AND INTEREST INCOME ACCRUI NG TO HIM IN A FOREIGN COUNTRY, WERE NOT PART OF HIS TOTAL INCOM E IN INDIA IN TERMS OF ITA NO. 2438, 2439 & 2440/DEL/2008 A.YRS. 2000-01,2002-03 & 2003-04 2 SECTION 23(3) OF DTAA BETWEEN INDIA AND UK. THE CL AIM OF THE ASSESSEE WERE NOT ACCEPTED BY THE AO. 4. UPON ASSESSEES APPEAL LD. CIT(A) ACCEPTED THE C ONTENTION THAT THE AMOUNT RECEIVED BY THE ASSESSEE IS NOT PENSION AS HELD BY THE AO BUT IN FACT IT IS FAMILY PENSION AND WAS NOT TAXABLE AS PE R ARTICLE 23(3) OF THE INDO UK DOUBLE TAXATION AVOIDANCE AGREEMENT. ACCOR DINGLY, HE DELETED THE ADDITION. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. 6. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. WE FIND THAT ASSESSMENT IN THESE CASES WERE FRAMED UND ER SECTION 144/147 OF THE IT ACT. THE ASSESSEE HAS NOT FULLY COOPE RATED WITH THE AO AND NOT SUBMITTED THE NECESSARY DETAILS, AS A RESULT T HE AO WAS COMPELLED TO MAKE THE ASSESSMENT EXPARTE. AO DID NOT HAVE BENE FIT OF ASSESSEES SUBMISSION BEFORE THE LD. CIT(A). IT IS ALSO NO T THE CASE THAT CIT(A) ASKED FOR REMAND REPORT FORM AO. UNDER THE CIRCU MSTANCES, WE FIND CONSIDERABLE COGENCY IN THE REVENUE ARGUMENTS THAT THERE IS VIOLATION OF PROVISION OF RULE 46-A. ACCORDINGLY, WE REMIT TH IS ISSUE TO THE FILES OF THE AO TO CONSIDER THE SAME AFRESH IN THE LIGHT OF THE SUBMISSIONS OF THE ASSESSEE. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 7. THE NEXT ISSUE RAISED IS THAT THE LD. CIT(A) HA S ERRED IN LAW AND ON THE FACTS OF THE CASE AND HAS VIOLATED THE PROVISIO NS OF RULE 46A IN DELETING THE ADDITION REPRESENTED DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE WHICH REMAINED UNEXPLAINED IN SPITE OF ALL OWING NUMBER OF OPPORTUNITIES TO THE ASSESSEE. ITA NO. 2438, 2439 & 2440/DEL/2008 A.YRS. 2000-01,2002-03 & 2003-04 3 8. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. WE HAVE ALREADY REMITTED THE MAIN ISSUE IN THESES CASE S TO THE FILES OF THE AO AND THIS ISSUE IS CONNECTED WITH THE SAME. HE NCE WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE TO THE FILES OF THE AO TO CONSIDER THE SAME AFRESH. 9. IN THE RESULT, ALL THE THREE APPEALS FILED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27/01/2010 UP ON CONCLUSION OF THE HEARING. SD/- SD/- [C.L. SETHI] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 27/01/ 2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES