ACIT, New Delhi V. Shri Reji Varghese, Gurgaon

ITA 2751/DEL/2009

• Counselvise Citation: 275120114 RSA 2009
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 13-09-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 05-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK SENIOR
• Keywords: Double taxation relief; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) SHRI C.L. SETHI, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.2751/DEL./2009 (ASSESSMENT YEAR : 2004-05) ACIT, CIRCLE 46 (1), VS. SHRI REJI VARGHESE, NEW DELHI. 240, UDYOG VIHAR, PHASE I, GURGAON, HARYANA. (PAN : AADPV3823B) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMT. PRATIMA KAUSHIK, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE ARISES OUT OF THE ORDER OF CIT (APPEALS)-XXX, NEW DELHI DATED 16.01.2009 FOR THE A SSESSMENT YEAR 2004- 05. THE GROUNDS OF APPEAL READ AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN 1. ALLOWING THE CLAIM OF DTAA WITHOUT APPRECIATING THE FACT THAT THE INCOME IS EARNED BY THE ASSESSEE IN I NDIA AS PER FORM NO.16 ATTACHED WITH THE RETURN OF INCOME AND C HINA IS A STATE WHERE THE INCOME IS DOUBLY TAXED. 2. IN ACCEPTING FRESH EVIDENCE IN CONTRAVENTION OF RULE L46A OF THE I.T. RULES. ITA NO.2751/DEL./2009 2 THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 2. NONE ATTENDED ON BEHALF OF THE ASSESSEE. WE HAV E HEARD THE LEARNED DR AND DURING THE HEARING, SHE PLEADED THAT THE CIT (A) HAS GRANTED THE RELIEF ON THE BASIS OF ADDITIONAL EVIDENCES SUBMITTED BEFO RE HIM. THE ADDITIONAL EVIDENCES WERE COPY OF RETURN FILED IN CHINA, PROOF OF TAXES PAID IN CHINA, COPY OF MONTHLY INCOME-TAX WITHHOLDING RETURNS FOR THE PERIOD JULY, 2003 TO MARCH, 2004 AND COPY OF DOUBLE TAXATION AVOIDANCE A GREEMENT BETWEEN INDIA & CHINA. SHE PLEADED THAT THE CIT (A) HAS CO NSIDERED THESE ADDITIONAL EVIDENCES WITHOUT PROVIDING AN OPPORTUNITY TO THE A O. THEREFORE, THERE IS A CLEAR CONTRAVENTION OF RULE 46A OF INCOME-TAX RULES AND SHE PRAYED THAT THE ISSUE MAY BE RESTORED BACK TO THE FILE OF CIT(A) FO R DECIDING DE NOVO AFTER GIVING AN OPPORTUNITY TO AO IN RESPECT OF ADDITIONA L EVIDENCES. 3. AFTER HEARING THE REVENUE, A PERUSAL OF THE RECO RD AND GOING THROUGH THE ORDER OF CIT (A), WE HOLD THAT THERE IS A CONTRAVEN TION OF RULE 46A OF INCOME-TAX RULES BY WAY OF ACCEPTING FRESH ADDITION AL EVIDENCES. THE ORDER OF CIT (A) SHOWS THAT NO OPPORTUNITY WAS GRANTED TO THE AO IN RESPECT OF THE FRESH EVIDENCES ADMITTED AND ON THAT BASIS, THE REL IEF WAS GRANTED BY HIM. IN VIEW OF THESE FACTS AND IN THE INTEREST OF JUSTICE AND EQUITY AND GOOD CONSCIOUS, WE DEEM IT FIT TO SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE ITA NO.2751/DEL./2009 3 ISSUE TO THE FILE OF CIT (A) FOR DECIDING DE NOVO A FTER GIVING OPPORTUNITY TO THE AO IN RESPECT OF THE FRESH EVIDENCES FILED BEFO RE THE CIT (A). WE ORDER ACCORDINGLY. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 13 TH DAY OF SEPTEMBER, 2011 AFTER CONCLUSION OF THE HEARING. SD/- SD/- (C.L. SETHI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 13 TH DAY OF SEPTEMBER, 2011/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.