Ganesh Chandrasekaran, CHENNAI V. ITO, CHENNAI

ITA 293/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8974 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 12-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH IRS
• Keywords: Salary income; Double taxation relief; Opportunity of being heard; Principle of natural justice; Permanent establishment
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . ! , '!# BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO.293/MDS/2016. ' $ %$ / ASSESSMENT YEAR : 2011-2012. SHRI. GANESH CHANDRASEKARAN, NEW NO.25, OLD NO.11, FLAT B2, LALITHA FLATS, MYLAI RANGANATHAN STREET, T. NAGAR, CHENNAI 600 017. [PAN AQTPC 4210D] VS. THE INCOME TAX OFFICER, INTERNATIONAL TAXATION I(1) CHENNAI 600 034. ( / APPELLANT) ( /RESPONDENT) &' ( ) / APPELLANT BY : SHRI. RAGHUNATHAN SAMPATH, ADV *+&' ( ) /RESPONDENT BY : SHRI. A.V. SREEKANTH, IRS, JCIT ( , / DATE OF HEARING : 07-04-2016 -.% ( , / DATE OF PRONOUNCEMENT : 23-06-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-16, CHE NNAI IN ITA NO.40/CIT(A)-16/2014-2015, DT 06.11.2015 FOR THE AS SESSMENT YEAR 2011-2012 PASSED U/S.143(3) AND 250 OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). ITA NO. 293/MDS/2016. :- 2 -: 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) IS ERRONEOUS BASED ON THE FACTS OF THE CASE, CONTRARY TO THE PRI NCIPLES OF NATURAL JUSTICE AND BADE IN LAW. 2 THE LEARNED CIT(A) ERRED IN NOT PROVIDING ADEQ UATE OPPORTUNITY OF BEING HEARD TO THE APPELLANT THEREBY VIOLATING THE PRINCI PLES OF NATURAL JUSTICE. 3 THE LEARNED CIT(A) ERRED IN CONCLUDING THAT FUJI TSU NETWORK COMMUNICATION, INC ('THE COMPANY' OR 'FUJITSU INC') HAD A PERMANENT ESTABLISHMENT ('PE') IN INDIA WITHOUT PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND HENCE THE GIVEN ORDER IS IN GR OSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. 4 THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW BY FAILING TO APPRECIATE THAT THE LOCAL ADDRESS IN INDIA WAS PROVIDED BY FUJITSU INC ONLY FOR OBTAINING THE TAX DEDUCTION ACCOUNT NUMBER. 5 THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CONCLUDING THAT THE FUJITSU INC HAD A LOCAL ADDRESS FROM WHERE THE COMP ANY WAS CARRYING OUT MANAGERIAL ASPECTS NEEDED FOR FUNCTIONING THE COMPA NY. 6 THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW BY FAILING TO APPRECIATE THAT THE PERMANENT ACCOUNT NUMBER AND TAX DEDUCTION ACCO UNT NUMBER WAS THAT OF FUJITSU INC AND NOT OF ANY ENTITY IN INDIA. 7 THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW BY CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN TAXING THE SALARY INCOME R ECEIVED BY THE APPELLANT IN INDIA. 8 THE LEARNED CIT(A) ERRED ON FACTS AND CIRCUMSTA NCES OF THE CASE AND IN LAW IN NOT ALLOWING THE CLAIM OF SHORT STAY EXEMPTION AS PER ARTICLE! 6(2) OF THE TREATY ON THE PREMISE THAT FUJITSU INC HAD A P E IN INDIA. 9. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW FOR FAILIN G TO APPRECIATE THAT THE APPELLANT HAS SATISFIED THE CONDITIONS SPECIFIE D IN ARTICLE 16(2) OF TREATY AND CONSEQUENTLY, THE SALARY INCOME RECEIVED BY THE APPELLANT WAS ELIGIBLE FOR TAX EXEMPTION IN INDIA. 10 THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW BY FAILING TO APPRECIATE THAT THE ACTIVITY CARRIED OUT BY THE APP ELLANT IS SUPERVISORY IN NATURE AND NO MANAGERIAL SERVICES WERE RENDERED IN INDIA. ITA NO. 293/MDS/2016. :- 3 -: 11 THE APPELLANT PRAYS THAT DIRECTIONS BE GIVEN T O GRANT ALL SUCH RELIEF ARISING FROM THE GROUNDS OF APPEAL MENTIONE D SUPRA AS ALSO ALL CONSEQUENTIAL RELIEF THERETO. 12 THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEN D AND/OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL AND TO SUBMIT SUCH STATEMENTS, DOCUMENTS AND PAPERS AS MAY BE CONSIDER ED NECESSARY EITHER AT OR BEFORE THE HEARING OF THIS A PPEAL AS PER LAW. 3. THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED RETURN OF INCOME ELECTRONICALL Y ON 29.07.2010 ADMITTING NIL TOTAL INCOME AND THE ASSESSEE IS HAV ING INCOME FROM SALARY, HOUSE PROPERTY AND INTEREST INCOME. THE ASS ESSEE IS ALSO A NON-RESIDENT AND CITIZEN OF USA AND FILED RETURN OF INCOME WITH REFUND CLAIM OF ?20,05,973/- AND THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT ON 13.06.2012 DETERMINING RE FUND INCLUDING INTEREST ?21,37,650/- WAS ISSUED BUT THE CHEQUE REM AINED UNDELIVERED DUE TO CHANGE OF THE ASSESSEES ADDRESS. SUBSEQUEN TLY, UNDER SCRUTINY NORMS, THE CASE WAS SELECTED AND NOTICE U/ S.143(2) OF THE ACT WAS ISSUED. SINCE THERE WAS NO RESPONSE, SHOW CAUSE NOTICE WAS ISSUED FOR PROPOSING TO COMPLETE THE ASSESSMENT U/S .144 OF THE ACT WITH THE AVAILABLE INFORMATION ON RECORD. IN RESPO NSE TO THE NOTICE, THE LD. AUTHORISED REPRESENTATIVE OF ASSESSEE APPE ARED AND PRODUCED DOCUMENTS, SUPPORTING THE PROOF OF NON-RESIDENT STA TUS WITH COPY OF PASSPORT WITH IMMIGRATION STAMPING IN SUPPORT OF AS SESSEES TRAVEL IN AND OUT OF INDIA AND STAY IN INDIA. THE ASSESSEE I N THE SAID FINANCIAL YEAR STAYED IN INDIA FOR A PERIOD OF 138 DAYS AND T HE DETERMINED ITA NO. 293/MDS/2016. :- 4 -: STATUS AS NON RESIDENT FOR INCOME TAX PURPOSE. THE ASSESSEE IS AN EMPLOYEE OF M/S.FUJITSU NETWORK COMMUTATIONS IND(FU JITSU INC.) USA AND WORK IN VENDOR LOCATIONS AT WIPRO LIMITED, ARIC ENT TECHNOLOGIES PVT. LTD, INDIA FOR PROVIDING SUPERVISING SERVICES IN INDIA AS PER ASSIGNMENT DATED 29.06.2010 AND CONTINUED TILL AUG UST, 2012. DURING HIS STAY THE SALARY OF THE ASSESSEE INCLUDING OTHER BENEFITS WERE PAID OUTSIDE INDIA AS DIRECTED BY M/S. FUJITSU INC. USA AND THE ASSESSEE UNDER INCOME TAX LAWS FILED RETURN OF INCOME FOR TH E ASSESSMENT YEAR 2011-12 AND HAS NOT ADMITTED SALARY INCOME BUT CLAI MED CREDIT OF ?20,05,973/- DEDUCTED BY THE EMPLOYER IN INDIA M/S . FUJITSU NETWORK COMMUNICATIONS INC. THE FACTS BEING THAT THE ASSES SEE IS ON PAY ROLLS OF USA COMPANY AND RESIDENT OF USA. BUT FORM NO. 1 6 FOR SALARY WAS ISSUED BY THE INDIAN COMPANY AND SAME WAS CLAIMED AS EXEMPTION. THE LD. AUTHORISED REPRESENTATIVE EXPLAINED THE ST ATUS WERE THE ASSESSEE WAS RESIDENT IN INDIA IN FINANCIAL YEAR 20 10-2011 FOR 138 DAYS BEING LESS THAN 182 DAYS, AND NON-RESIDENT AS PER THE PROVISIONS OF SEC. 6(1) OF THE ACT. THE LD. ASSESSING OFFICER CONSIDERED THE FACTS THAT THE ASSESSEE HAS LEFT INDIA FOR THE PURPOSE OF EMPLOYMENT IN USA AND STAYING IN INDIA FOR ASSISTING AN OVERSEAS EN TITY ON ASSIGNMENT UNDER SUPERVISION OF US COMPANY. THE ASSESSEE HAS A DUAL EMPLOYMENT IN USA AND INDIA. IN INDIA ASSESSEE WAS WORKING FOR M/S. FUJITSU NETWORK COMMUNICATIONS INC., AND THE LD. ITA NO. 293/MDS/2016. :- 5 -: ASSESSING OFFICER RELIED ON THE PROVISIONS OF DTAA FOR THE CLAIM OF RELIEF OF DOUBLE TAXATION BETWEEN INDIA AND USA UND ER ARTICLE 16 AND FURTHER OBSERVED THAT THE ASSESSEE WAS RESIDENT OF USA FILED HIS RETURN OF INCOME IN USA ADMITTING INCOME EARNED IN INDIA B ECAUSE OF EMPLOYMENT IN INDIAN ORIGIN. THE LD. ASSESSING OFF ICER FINALLY OBSERVED THE EMPLOYMENT STATUS OF INDIA AND INCOME EARNED IN INDIA IS TAXABLE AND DEALT ON THE PROVISIONS OF SEC.5(2) OF THE ACT WITH THE EXPLANATIONS AND CONCLUDED THAT THE SALARY INCOME RECEIVED IN INDIA IS TAXABLE AND COMPLETED ASSESSMENT TAXING THE SALARY AS PER FORM NO.16 ISSUED BY THE EMPLOYER IN INDIA FOR THE ASSES SMENT YEAR 2011- 12 AND OBSERVED THAT THE INCOME OF THE ASSESSEE IS TAXABLE IN INDIA AND THE RELIEF CLAIMED U/S.90 & 91 OF THE ACT IN A CCORDANCE WITH THE PROVISIONS OF ARTICLE 16 OF DTAA ARE REJECTED AND A SSESSED THE SALARY INCOME ?69,78,492/-. AGGRIEVED BY THE ORDER, THE ASSESSEE FILED AN APPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS). 4. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED REPRESENTATIVE ARGUED THE GROUNDS AND OBJECTED THE ACTION OF LD. ASSESSING OFFICER ERRED IN NOT ALLOWING CLAIM OF B ENEFIT OF SHORT STAY EXEMPTION OF DTAA BETWEEN INDIA AND USA TREATY AND THERE IS NO EMPLOYER IN THE NAME OF M/S. FUJITSU NETWORK COMMUN ICATIONS INC., TAMIL NADU (TN) AND WAS WRONGLY CONSIDERED WEREAS A CTUAL FORM ITA NO. 293/MDS/2016. :- 6 -: NO.16 WAS ISSUED BY M/S. FUJITSU INC. USA WITH TA N NUMBER ALLOTTED IN INDIA AND THE CLAIM OF THE ASSESSEE WAS REJECTED ON DENIAL OF BENEFIT UNDER ARTICLE 16(2) WERE ASSESSEE HAS SATISFIED THE CONDITIONS AND THE SALARY INCOME IS ELIGIBLE FOR EXEMPTION UNDER 16(2) OF THE TREATY. FURTHER, THE TAX REFUND DETERMINED BY THE LD. ASS ESSING OFFICER U/S.143(1) OF THE ACT ?24,38,150/- INCLUDING INTERE ST WAS NOT PAID TO THE ASSESSEE. THE LD. CIT(A) CONSIDERED THE SUBMISS IONS AND THE ARGUMENTS OF THE ASSESSEE AND THE FINDING OF THE LD. ASSESSING OFFICER AND HAS DEALT ON THE WRITTEN SUBMISSIONS OF THE ASSESSEE AT PARA 4 OF HIS ORDER ON DTAA AND ALSO POINTWISE CLAR IFICATION ON THE TAXES, TREATY, ASSESSMENT ORDER AND TABULAR CHART EXPLAINING THE TRANSACTION CRITERIA OF BENEFITS AVAILABLE UNDER A RTICLE 16(2) OF THE ACT AND EXHAUSTIVELY DEALT ON THE RESIDENT PROVISIONS AND JUDICIAL DECISIONS, ON THE CRUX OF THE ISSUE BEING PERMANEN T ESTABLISHMENT (PE) IN INDIA. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BASED ON THE ITAT DECISIONS AND DOCUMENTS FILED IN RESPE CT OF TAN ALLOTMENT DISCUSSED ELABORATELY IN HIS ORDER AT PA RA 6 TO 10 AND CONCLUDES THAT THE ASSESSEE SUBSTANTIATE THE FACTS OF EMPLOYER M/S. FUJITSU INC. USA COMPANY HAS NO PERMANENT ESTABLIS HMENT IN INDIA AND THE LOCAL ADDRESS WAS USED FOR OBTAINING TAN N O FOR INCOME TAX PURPOSE AND THE LD. COMMISSIONER OF INCOME TAX (APP EALS) CONCLUDES THAT THE ASSESSEE IS NOT ELIGIBLE FOR CONCESSION U NDER TREATY ARTICLE ITA NO. 293/MDS/2016. :- 7 -: 16(2) AS EMPLOYER COMPANY HAS A PERMANENT ESTABLIS HMENT IN INDIA AND CONCURRED WITH THE FINDINGS OF THE LD. ASSESSIN G OFFICER AND DISMISSED THE GROUND AND GAVE DIRECTION TO THE LD. ASSESSING OFFICER IN RESPECT OF REFUND AND PARTLY ALLOWED THE APPEAL. AG GRIEVED BY THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE ASSAILED AN APPEAL BEFORE TRIBUNAL. 5. BEFORE US, THE LD. AUTHORISED REPRESENTATIVE REITER ATED THE GROUNDS AND EXPLANATIONS MADE IN THE ASSESSMENT AND APPELLATE PROCEEDINGS AND EMPHASIZED THAT THE ASSESSEE IS A N ON-RESIDENT AND CITIZEN OF USA AND IN THE FINANCIAL YEAR 2010-2011, THE STATUS IS NON RESIDENT FOR INCOME TAX PURPOSE. THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) HAS ERRED IN CONCLUDING THAT THE ASSESSEE EMPLOYER M/S. FUJITSU INC. USA HAVING A PERMANENT ESTABLISHMENT IN INDIA WITHOUT PROVIDING AN OPPORTUNITY OF BEING HEARD AND THUS GR OSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND ON THE DISPUTED I SSUE OF ADDITION, THE LD. AUTHORISED REPRESENTATIVE EXPRESSED THAT LOCAL ADDRESS IN INDIA WAS PROVIDED TO OBTAIN TAX DEDUCTION ACCOUNT NUMBER (T AN) AND THE COMPANY WAS NOT CARRYING OUT ANY MANAGERIAL ASPECTS AND FUNCTIONING AS ALLEGED. THE EMPLOYER M/S. FUJITSU INC. USA HAS APPLIED FOR PAN AND TAN DUE TO COMPLIANCE OF INCOME TAX ACT AND RU LES AND DOES NOT HAVE ANY ESTABLISHMENT IN INDIA. THE LD. COMM ISSIONER OF INCOME ITA NO. 293/MDS/2016. :- 8 -: TAX (APPEALS) HAS CONCURRED WITH THE FINDINGS OF TH E LD. ASSESSING OFFICER IN TAXING THE SALARY INCOME AND DENIAL OF CONCESSION OF SHORT STAY EXEMPTION AS PER ARTICLE 16(2) OF TREATY. M/S. FUJITSU INC. USA HAS NO PERMANENT ESTABLISHMENT (PE) IN INDIA AND TH E ASSESSEE SATISFIES THE CONDITIONS AS PER ARTICLE 16(2) OF DT AA AND ELIGIBLE FOR TAX EXEMPTION IN INDIA AND THE ACTIVITIES OF THE ASSESS EE ARE OF SUPERVISORY IN NATURE AND BEING ASSIGNEE OF M/S. FUJITSU INC. USA BUT NOT MANAGERIAL SERVICES AND PRAYED FOR ALLOWING THE APP EAL. 6. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELI ED ON THE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS) AND VEHEMENTLY OPPOSED THE GROUNDS. 7. WE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIA L ON RECORD. THE CRUX OF THE ISSUE LIES WERE THE ASSESS EE BEING A NON- RESIDENT AND CITIZEN OF USA HAS COME ON ASSIGNMENT TO SUPERVISE THE WORKS ON BEHALF OF M/S. FUJITSU INC. USA FOR A P ERIOD OF TWO YEARS. DURING FINANCIAL YEAR 2010-2011, THE ASSESSEE REC EIVED SALARY INCOME AND TAX WAS DEDUCTED AND FORM NO. 16 WAS ISSUED BY M/S. FUJITSU INC. USA. THE LD. AUTHORISED REPRESENTATIVE EXPLAINED TH AT EMPLOYER COMPANY HAS NO PERMANENT ESTABLISHMENT IN INDIA AN D THE ASSESSEE FILED RETURN OF INCOME BY CLAIMING CONCESSION UNDER ARTICLE 16(2) AND COMPLIED WITH THE CONDITIONS OF DTAA. THE FACT REM AINS THAT THE ITA NO. 293/MDS/2016. :- 9 -: ASSESSEE HAS DISCLOSED SALARY INCOME IN HIS RETUR N OF INCOME FILED IN USA AS OBSERVED BY THE LD. ASSESSING OFFICER IN H IS ASSESSMENT ORDER AT PAGE 4 PARA 14 AND ON AVAILING THE CONCESSION O F SHORT STAY UNDER ARTICLE 16(2) OF DTAA AND FILED RETURN OF INCOME IN INDIA FOR CLAIM OF REFUND OF TAX ?20,05,973/-. FURTHER, THE ASSESSEE STAYED IN INDIA FOR A PERIOD OF 138 DAYS AS PER PASSPORT ENDORSEMENTS BE ING LESS THAN 182 DAYS AND THE ASSESSEE QUALIFIED FOR NON RESIDENT ST ATUS. THE DISPUTED ISSUE ARISED WERE THE LD. ASSESSING OFFICER TREATE D THE INCOME OF THE ASSESSEE AS TAXABLE IN INDIA IRRESPECTIVE OF THE FA CT THAT THE ASSESSEE HAS COME TO INDIA AS ASSIGNEE FOR A PERIOD OF TWO Y EARS ON AGREEMENT WITH USA EMPLOYER. THE LD. ASSESSING OFFICER HAS R EJECTED THE CLAIM OF THE ASSESSEE UNDER ARTICLE 16(2) OF DTAA AND LEVIED TAX. THE LD. AUTHORISED REPRESENTATIVE MENTIONED THAT THE ASSESS EE HAS NOT RECEIVED THE REFUND CHEQUE AS IT WAS UNDELIVERED DU E TO CHANGE OF ADDRESS. BUT THE LD. ASSESSING OFFICER HAS TREATED THE REFUND OF TAX AS PAID IN HIS ASSESSMENT ORDER U/SEC. 143(3) OF THE A CT WHICH IS NOT IN ACCORDANCE WITH LAW. THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) HAS DISCUSSED ON PERMANENT ESTABLISHMENT (PE) BEING A NEW DIMENSION BROUGHT TO THE ASSESSMENT PROCEEDINGS OF THE EMPLOYEE. THE EMPLOYER COMPANY M/S. FUJITSU INC. USA APPLIE D FOR TAN AND PAN NOS. FOR COMPLIANCE OF INCOME TAX PROVISIONS W ITH LOCAL ADDRESS. THE LD. AUTHORISED REPRESENTATIVE EXPLAINED THAT T HERE IS NO ITA NO. 293/MDS/2016. :- 10 -: ESTABLISHMENT OF USA COMPANY IN INDIA AND THE LOCAL ADDRESS WAS USED ONLY FOR THE PURPOSE OF OBTAINING TAX DEDUCTION AC COUNT NUMBER (TAN) WHICH IS MANDATORY FOR PAYMENT OF TDS AND ISS UE OF FORM NO.16. THE LD. CIT(A) ELABORATELY DISCUSSED ON THI S ASPECT AND CONFIRMED THE ORDER OF THE LD. ASSESSING OFFICER. THE LD. AR FILED VOLUMINOUS PAPER BOOK AND VEHEMENTLY ARGUED THAT T HE ASSESSEE WAS PREVENTED FROM SUBMITTING INFORMATION ON PERMANENT ESTABLISHMENT(PE) WHICH WAS HIGHLIGHTED IN THE APPE LLATE PROCEEDINGS AND NO PROPER AND FAIR OPPORTUNITY WAS PROVIDED TO THE ASSESSEE TO PROVE WITH BONAFIDE EVIDENCE THAT THERE IS NO PERM ANENT ESTABLISHMENT OF M/S. FUJITSU INC. USA IN INDIA. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS PASSED THE ORDER DISMISSING THE APPEAL IN GROSS VIOLATION OF PRINCIP LES OF NATURAL JUSTICE. THE PRINCIPLES OF NATURAL JUSTICE IS A CONCEPT OF C OMMON LAW AND REPRESENTS HIGHER PROCEDURAL PRINCIPLES DEVELOPED B Y THE COURTS, WHICH EVERY JUDICIAL, QUASI-JUDICIAL AND ADMINISTRATIVE A UTHORITY MUST FOLLOW WHILE TAKING ANY DECISION ADVERSELY AFFECTING THE R IGHTS OF THE ASSESSEE AND IMPLIES FAIRNESS, EQUITY AND EQUALITY. IT IS A ELEMENTARY PRINCIPLE OF NATURAL JUSTICE IN THE LAW OF TAXATION IS THAT THE ASSESSEE SHOULD HAVE KNOWLEDGE OF THE MATERIAL WHICH IS BEING USED AGAIN ST HIM WHICH ASSESSEE CAN DEFEND HIS CASE AND FAIR OPPORTUNITY T O REBUT THE FACTS. CONSIDERING THE APPARENT FACTS, PROVISIONS OF LAW A ND PRINCIPLES OF ITA NO. 293/MDS/2016. :- 11 -: NATURAL JUSTICE, MATERIAL EVIDENCES AND ARTICLE OF DTAA TREATY, WE ARE OF THE OPINION THAT ASSESSEE SHOULD NOT BE DEPRIVED TO PRESENT THE CASE WITH MATERIAL EVIDENCE AND PROPER OPPORTUNITY OF HEARING SHOULD BE PROVIDED BEFORE DECIDING THE CASE. ACCORDINGLY, WE REMIT ENTIRE FILE TO THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) TO ADJUDICATE THE CASE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY O F HEARING TO THE ASSESSEE BEFORE PASSING THE ORDER. THE APPEAL OF T HE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE ORDER PRONOUNCED ON THURSDAY, THE 23RD DAY OF JUNE, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ) (G. PAVAN KUMAR) / JUDICIAL MEMBER / CHENNAI 0 / DATED:23.06.2016 KV 1 ( *',23 43%, / COPY TO: 1 . &' / APPELLANT 3. 5, () / CIT(A) 5. 389 *',' / DR 2. *+&' / RESPONDENT 4. 5, / CIT 6. 9:$ ; / GF