Sharda Gupta, Lucknow V. Asstt. Commissioner of Income Tax, Lucknow

ITA 34/LKW/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6554 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-04-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 16-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: P K KAPOOR
• Keywords: Salary income; Opportunity of being heard; Principle of natural justice
• Section: 234B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.34/LKW/2014 ASSESSMENT YEAR:2008 - 09 SHRI SHARAD GUPTA, FLAT NO. 102, ORCHID, ELDECO PARK VIEW, SITAPUR ROAD, LUCKNOW. PAN:ABVPG1809R VS. A.C.I.T., RANGE - II, LUCKNOW. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI P. K. KAPOOR, C.A. RESPONDENT BY SHRI ALOK MITRA, D.R. DATE OF HEARING 29/04/2014 DATE OF PRONOUNCEMENT 1 6 /05/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - I, LUCKNOW DATED 14/08/2012 FOR ASSESSMENT YEAR 2008 - 2009. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE THE 'CIT(A)' HAS ERRED IN LAW AND ON FACTS IN PASSING THE EX - PARTE ORDER DATED 09.08.2012 WITHOUT AFFORDING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE 'APPELLANT'. 2 2. BECAUSE THE 'APPELLANT' WAS NEVER SERVED WITH ANY NOTICE OF HEARING OF APPE AL OWING TO WHICH HE COULD NOT APPEAR BEFORE THE 'CIT(A)' TO PLEAD HIS CASE AND CONSEQUENTLY THE 'CIT(A)' WAS NOT JUSTIFIED IN PASSING THE EX - PARTE ORDER DATED 09.08.2012. 3. BECAUSE THE EX - PARTE ORDER DATED 09.08.2012 PASSED BY 'CIT(A)' IS AGAINST THE PR INCIPLES OF NATURAL JUSTICE AND CONSEQUENTLY THE SAME IS LIABLE TO BE SET ASIDE AND RESTORED TO HIM FOR BEING DECIDED ON MERITS. WITHOUT PREJUDICE TO THE AFORESAID 4. BECAUSE THE 'ACIT' ERRED IN LAW AND ON FACTS IN TREATING THE SALARY OF RS.12,04,912/ - RECEIVED BY THE 'APPELLANT' DURING THE PERIOD OF DEPUTATION TO SPAIN AS TAXABLE UNDER THE HEAD 'INCOME FROM SALARY' AND SUBJECTING THE SAME TO TAX, DIS REGARDING THE FACT THAT DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL THE 'APPEL LANT' ENJOYED THE STATUS OF NON - RESIDENT ON ACCOUNT OF BEING ON DEPUTATION TO SPAIN AND CONSEQUENTLY 'CIT(A)' SHOULD HAVE DIRECTED THE 'ACIT' TO EXCLUDE THE SUM OF RS.12,04,912/ - FROM THE TOTAL INCOME OF THE 'APPELLANT'. 5. BECAUSE WHILE COMPUTING THE TOT AL INCOME OF THE 'APPELLANT' THE AUTHORITIES BELOW FAILED TO APPRECIATE THAT DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER APPEAL, THE PROVISIONS CONTAINED IN ARTICLE 16 OF DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA) BETWEEN INDIA AND SPAIN WER E APPLICABLE ACCORDING TO WHICH THE SALARY OF RS.12,04,912/ - RECEIVED BY THE 'APPELLANT' WAS NOT CHARGEABLE TO TAX UNDER THE PROVISIONS OF THE 'ACT' AS DUE TAX THEREON HAD BEEN PAID IN SPAIN. 6. BECAUSE THE AUTHORITIES BELOW HAD ERRED IN LAW AND ON FACTS IN NOT GIVING CREDIT OF RS.4,837/ - FOR TAX DEDUCTED AT SOURCE UNDER SECTION 192 OF THE 'ACT'. 3 7. BECAUSE ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE 'APPELLANT' WAS NOT LIABLE TO PAY INTEREST UNDER SECTION 234B AND 234C OF THE 'ACT' AND AS SUCH THE 'CIT(A)' SHOULD HAVE DIRECTED THE ASSESSING OFFICER NOT TO CHARGE INTEREST UNDER SECTION 234B AND 234C AMOUNTING TO RS.1,25,532/ - AND RS.14,073/ - RESPECTIVELY. 8. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ALTHOUGH SEVERAL NOTICES WERE ISSUED BY LEARNED CIT(A) BUT IT IS NOTED BY CIT(A) HIMSELF THAT THE NOTICES WERE RETURNED UNSERVED WITH THE REMARK THAT THE ASSESSEE DOES NOT STAY AT THE GIV EN ADDRESS. HE SUBMITTED THAT UNDER THESE FACTS, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. LEARNED D.R. OF THE REVENUE SUBMITTED THAT SINCE THE ASSES SEE HAS NOT COMMUNICATED REGARDING CHANGE OF ADDRESS TO THE CIT(A), NO FURTHER OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT ADMITTEDLY THE NOTICE WAS NOT SERVED TO THE ASSESSEE ALTHOUGH THERE I S FAULT OF THE ASSESSEE ALSO BECAUSE HE HAS NOT INTIMATED THE CIT(A) ABOUT THE CHANGE OF ADDRESS. STILL WE FEEL THAT IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE FOR PRESENTING HIS CASE BEFORE THE CIT(A). HENCE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE WE ARE RESTORING THE 4 MATTER BACK TO THE FILE OF CIT(A) FOR FRESH DECISION, WE DO NOT MAK E ANY OBSERVATION REGARDING THE MERIT OF THE ISSUE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 6 /05/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR