S.K. Madan, Gurgaon V. ACIT, New Delhi

ITA 3631/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3337 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1999-2000
• Appeal Filed On: 05-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K JIWANI
• Assessee Lawyers: NIPPUN MITTAL
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3631/DEL/2017 ASSESSMENT YEAR: 1999-2000 SH. S.K.MADAN, VS. ACIT, CIRCLE 42(1), H-52, SECOND FLOOR, NEW DELHI RESIDENCY GREENS, GREENWOOD CITY, SECTOR-46, GURGAON 122002 (PAN: AAFPM7050H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. NIPPUN MITTAL, CA REVENUE BY : SH. V.K. JIWANI, SR. DR ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 31.3.2016 OF THE LD. CIT(A)-28, NEW DELHI PERTAININ G TO ASSESSMENT YEAR 1999-2000 AND RAISED THE FOLLOWING GROUNDS:- 1.ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE NOTICE U/S. 148 ISSUED IN THIS CASE WAS 2 BAD IN LAW, ILLEGAL, WITHOUT JURISDICTION AND BARRE D BY LIMITATION AND THE CIT(A) ERRED IN NOT HOLDING SO. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 50000/- MADE BY THE AO BY DISALLOWING CLAIM OF EXEMPTION OF RS. 50000/- U/S. 10(13A) OF INCOME TAX ACT, 1961. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ADDITION OF RS. 50,000/- MADE BY THE AO AND CONFIRMED BY CIT(A) IS BEYOND THE SCOPE OF PROVISIONS OF SECTION 147/148 OF THE INCOME TAX ACT, 1961. THE APPELLANT CRAVES LEAVE TO ADD ONE OR MORE GROUND OF APPEAL OR TO ALTER / MODIFY THE EXISTING GROUND BEFORE OR AT THE TIME OF HEARING OF APPEAL. THE AFORESAID GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 2. THE BRIEF FACTS OF THE CASE ARE ORIGINAL RETURN IN THIS CASE WAS FURNISHED ON 22.6.1999 DECLARING INCOME OF RS. 8,62,490/-. THIS RETURN WAS PROCESSED U/S. 143(1) OF THE I.T. A CT, 1961 ON 22.10.1999 AND REFUND OF RS. 2550/- WAS GRANTED TO THE 3 ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS FOR AY 2001-02 IT WAS CAME TO THE KNOWLEDGE OF THE AO THA T ASSESSEE JOINED LUFTHANSA CARGO INDIA ON 27.12.1996. HOWEVE R, VIDE COMPANYS ORDER DATED 23.10.1998, HE WAS ORDERED TO BE TRANSFERRED TO SHARJAH W.E.F. 1.11.1998. HE REMAINE D IN SERVICE WITH THEM TILL 10.5.2000. THE STATUS OF THE ASSESS EE FOR THE ASSESSMENT YEAR 1999-2000 WAS CONSIDERED TO BE THAT OF RESIDENT IN VIEW OF SECTION 6(1) OF THE I.T. ACT, AS HE WAS IN INDIA FROM 1.4.1998 TO 31.10.1998 AND EARLIER 4 YEA RS AND HENCE LIABLE TO BE TAXED FOR ALL HIS GLOBAL INCOME. THEREAFTER THE ASSESSEE RECEIVED NOTICE DATED 31.3.006 U/S. 148 OF THE ACT AND IN RESPONSE TO THE SAME ASSESSEE SUBMITTED THAT ORIGINAL RETURN FILED BY THE ASSESSEE ON 22.10.1999 MAY KIND LY BE TREATED AS FRESH RETURN. HOWEVER, THE AO ASSESSED THE INCOME U/S. 143(3) /147 AT RS. 14,19,714/- VIDE ORDER DATE D 28.12.2006 AND DISALLOWED THE CLAIM OF EXEMPTION O F RS. 50,000/- U/S. 10(13A) AND ADDED BACK THE SAME TO TH E INCOME OF THE ASSESSEE. AGAINST THE ADDITION, ASSESSEE APP EALED BEFORE THE LD. CIT(A) WHO VIDE HIS IMPUGNED ORDER DATED 31 .3.2016 HAS CONFIRMED THE ADDITION IN DISPUTE AND DISMISSED THE APPEAL OF THE ASSESSEE. 4 3. AGGRIEVED WITH THE IMPUGNED ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. LD. COUNSEL OF THE ASSESSEE HAS REITERATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL AND ST ATED THAT AS PER PARA 4 OF ASSESSMENT ORDER THE CASE WAS REOPENE D ON THE GROUND THAT SALARY & PERQUISITE EARNED BY ASSESSEE IN SHARJAH HAS TO BE TAXED IN THE HAND OF ASSESSEE AS THE ASSE SSEE WAS 'RESIDENT' IN INDIA. IT WAS FURTHER STATED THAT IN THE REASONS RECORDED THE FIGURES OF INCOME ESCAPING ASSESSMENT I.E. SALARY AND PERQUISITES EARNED IN SHARJAH WAS MENTIONED AT RS 328000/- AND RS 77400/-. HOWEVER THE ACTUAL SALARY & PERQUISITE EARNED IN SHARJAH WAS RS. 537224/- (SALA RY RS. 418455/- AND PERQUISITE RS. 118769/-) FOR WHICH THE AO MADE THE ADDITION AND IN APPEAL THE LD. CIT (A) HAS HELD THAT ASSESSEE WAS NOT RESIDENT IN INDIA AND CONSEQUENTLY HE DELETED THE AFORESAID ADDITION OF RS 537224/-. HE FURTHER STATED THAT SO FAR AS THE ADDITION OF RS 50000/- ON AMOUNT OF HRA IS CONCERNED, IT WAS NOT PART OF REASONS TO BELIEVE. I N PARA 13.2 OF ASSESSMENT ORDER THE AO HAS MENTIONED THAT ASSESSME NT REOPENED UNDER U/S. 147 OF THE ACT IS NOT CONFIRMED TO POINTS TAKEN UP IN THE REASONS TO BELIEVE. IN THIS REGARD, IT IS SUBMITTED THAT IF THE ADDITION ON THE ISSUES MENTIO NED IN THE 5 REASONS DO NOT SURVIVE, THE OTHER ADDITIONS CANNOT BE SUSTAINED. TO SUPPORT HIS AFORESAID CONTENTION, HE RELIED UPON THE FOLLOWING CASES LAWS BY FILING THEIR COPIES BEF ORE THE BENCH. A. RANBAXY LABORATORIES LTD. (IT APPEAL NOS. (L) 1526 OF 2008 AND 1714 OF 2009 APRIL 12, 2010) B. JET AIRWAYS (I) LTD. ( IT APPEAL NO. 148 OF 2008 JUNE 3, 2011) 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. I FIND THAT IN THIS CASE THERE IS A DELAY OF 03 DAYS IN FILING THE APPEAL AND ASSESSEE HAS FILED THE APPLICATION FOR C ONDONATION OF DELAY MENTIONING THE REASONS THAT THE APPEALS WERE REQUIRED TO BE FILED BY 02.6.2017 (FRIDAY) AND THE PERSON CONC ERNED, MR. VIKAS CHOUDHARY, WAS GOING TO ITAT FOR FILING OF AP PEALS COULD NOT REACH ITAT DUE TO MINOR ROAD ACCIDENT. THEREFOR E, THE APPEAL WAS FILED ON 05.06.2017 (MONDAY) AND AFFIDAV IT IN THIS REGARD OF SH. VIKAS CHOUDHARY IS ATTACHED WITH THE APPLICATION FOR CONDONATION OF DELAY. KEEPING IN VIEW OF THE FA CTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED V IEW THAT 6 DELAY IN FILING THE APPEAL IS QUITE GENUINE, HENCE, THE DELAY OF 03 DAYS IS CONDONED. I FIND THAT THE CASE OF THE A SSESSEE WAS REOPENED ON THE GROUND THAT SALARY & PERQUISITE EAR NED BY ASSESSEE IN SHARJAH HAS TO BE TAXED IN THE HAND OF ASSESSEE AS THE ASSESSEE WAS 'RESIDENT' IN INDIA. IN THE REAS ONS RECORDED THE FIGURES OF INCOME ESCAPING ASSESSMENT I.E. SALA RY AND PERQUISITES EARNED IN SHARJAH WAS MENTIONED AT RS. 3,28,000/- AND RS. 77,400/-. HOWEVER THE ACTUA L SALARY & PERQUISITE EARNED IN SHARJAH WAS RS. 5,37,224/- (SA LARY RS. 4,18,455/- AND PERQUISITE RS. 1,18,769/-) FOR W HICH THE AO MADE THE ADDITION AND IN APPEAL THE LD. CIT (A) HAS HELD THAT ASSESSEE WAS NOT RESIDENT IN INDIA AND CONSEQUENTLY HE DELETED THE AFORESAID ADDITION OF RS 5,37,224/-. BUT SO FA R AS THE ADDITION OF RS 50,000/- ON AMOUNT OF HRA IS CONCERN ED, I NOTE THAT IT WAS NOT THE PART OF REASONS TO BELIEVE. AFT ER PERUSING THE PARA 13.2 OF ASSESSMENT ORDER, I NOTE THAT AO HAS M ENTIONED THAT ASSESSMENT REOPENED UNDER U/S. 147 OF THE ACT IS NOT CONFIRMED TO POINTS TAKEN UP IN THE REASONS TO BELI EVE. THEREFORE, IN MY CONSIDERED VIEW IF THE ADDITION ON THE ISSUES MENTIONED IN THE REASONS DO NOT SURVIVE, THE OTHER ADDITIONS ARE NOT TENABLE IN THE EYES OF LAW, HENCE, I DELETE THE ADDITION IN DISPUTE AND ALLOW THE APPEAL FILED BY THE ASSES SEE. 7 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED ON 09-03-2018. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 09-03-2018 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.