ACIT, Circle - 24, Kolkata, Kolkata V. Shri Shankar Moitra, Kolkata

ITA 431/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9193 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2011
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 27-01-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 26-02-2010
• Court: TRIBUNAL
• Department Lawyers: B R PURAKAYASTHA
• Assessee Lawyers: A K MITRA
• Keywords: Double taxation relief; Additional evidence; Reassessment proceedings; Set aside

Judgement Text

1 , A , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- A , KO LKATA [ . . . . . . . . , , , , , ,, , . .. . . .. . , , , , ! ] BEFORE SHRI D.K. TYAGI, JUDICIAL MEMBER & SRI C.D. RAO, ACCOUNTANT MEMBER ' ' ' ' / ITA NO. 431 (KOL) OF 2010 #$% &' / ASSESSMENT YEAR 2002-03 ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE-4, KOLKATA. SRI SHANKAR MOITRA, KOLKATA. (PAN-AEOPM4482N) (*+ / APPELLANT ) - $ - - VERSUS - (.*+/ RESPONDENT ) C.O. NO. 34 (KOL) OF 2010 [ ' / ITA NO. 431 (KOL) OF 2010 ] #$% &' / ASSESSMENT YEAR 2002-03 SRI SHANKAR MOITRA, KOLKATA. (PAN-AEOPM4482N) ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE-4, KOLKATA. ( CROSS-OBJECTOR ) - $ - - VERSUS - (.*+/ RESPONDENT ) DEPARTMENT BY : SRI B.R.PURAKAYASTHA ASSESSE E BY : SRI A.K. MITRA / / ORDER ( . .. . . .. . ), ! (C.D. RAO), ACCOUNTANT MEMBER : THE APPEAL BY THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE BOTH ARE DIRECTED AGAINST THE ORDER OF THE LD. C.I.T.(A)-XIV , KOLKATA DATED 14.10.2009 PERTAINING TO ASSESSMENT YEAR 2002-03. FOR THE SAKE OF CONVEN IENCE, BOTH THIS APPEAL AND THE CROSS OBJECTION ARE DISPOSED OFF BY THIS CONSOLIDAT ED ORDER. 2. THE APPEAL BY THE REVENUE WAS LATE BY 39 DAYS. AT THE TIME OF HEARING BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE REQUESTED FOR C ONDONATION OF DELAY AND HE STATED THAT SRI LALMOHAN MAJHI, A.C.I.T., CIRCLE-24, HAS A LREADY FURNISHED AN AFFIDAVIT DATED 25/02/2010 EXPLAINING THE REASONS FOR DELAY. THE L D. A/R OF THE ASSESSEE HAS NOT SERIOUSLY OBJECTED TO THE SAME. WE FIND THAT THE A. O. HAS EXPLAINED THE DELAY OF EACH DAY. THE HONBLE APEX COURT IN THE CASE OF COLLEC TOR, LAND ACQUISITION VS. MST. KATIJI & 2 ORS. [167 I.T.R. 471 (SC)] HAS DIRECTED TO ADOPT A PRAGMATIC AND LIBERAL APPROACH WHILE CONSIDERING THE PETITION FOR CONDONATION OF DELAY. WE, THEREFORE, CONSIDERING THE AFFIDAVIT FILED BY THE A.O. AND RESPECTFULLY RELYIN G UPON THE ABOVE DECISION OF HONBLE APEX COURT DEEM IT PROPER TO CONDONE THE DELAY OF 3 9 DAYS IN RESPECT OF THE APPEAL BEFORE US AND ADMIT THE SAME FOR HEARING ON MERITS. 3. THE ONLY GROUND RAISED IN THIS APPEAL BY THE RE VENUE READS AS UNDER :- THE LD. CIT(A) ERRED IN FACTS AND IN LAW BY ADMITTING NEW EVIDENCE DURING THE COURSE OF APPELLATE PROCEEDINGS IN VIOLATION OF THE PROVISIONS OF RULE 46 OF THE I.T. RULES WITHOUT ALLOWING REASONABLE OPPORTUNITY TO TH E A.O. TO EXAMINE THE EVIDENCE/EXPLANATION SUBMITTED BY THE ASSESSEE. 4. AT THE TIME OF HEARING BEFORE US, THE LD. DEPAR TMENTAL REPRESENTATIVE HAS REFERRED TO PAGES 5 TO 7 OF LD. C.I.T.(A)S ORDER, WHEREIN IT IS MENTIONED THAT THE ASSESSEE HAS FURNISHED THE COPIES OF RETURNS FILED BY HIM IN SINGAPORE FOR ASSESSMENT YEAR 2002 AS WELL AS FOR ASSESSMENT YEAR 2003 AND F INALLY IT IS CONCLUDED BY THE LD. C.I.T.(A) THAT IN THE WORKING OF THE INCOME DISCLOS ED IN THE SINGAPORE RETURN OF INCOME, IT IS SEEN THAT THE SALARY RECEIVED IN INDIAN RUPEES H AS BEEN CONSIDERED AND HAS BEEN CONVERTED INTO SINGAPORE DOLLARS FOR DISCLOSING IN THEIR RETURNS. HE, THEREFORE, CONTENDED THAT THE LD. C.I.T.(A) VIOLATED RULE 46A OF I.T. RULES SINCE HAS NOT OBTAINED ANY REMAND REPORT FROM THE A.O. THE LD. DEPARTMENT AL REPRESENTATIVE, THEREFORE, REQUESTED TO SET ASIDE THE ORDERS OF THE AUTHORITIE S BELOW AND RESTORE THE MATTER TO THE FILE OF A.O. 5. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSE SSEE BY REFERRING TO PARA-8 OF LD. C.I.T.(A)S ORDER CONTENDED THAT THE LD. C.I.T.(A) HAS ALREADY EXPRESSED HIS OPINION THAT ONE HAS TO KEEP IN MIND THAT SEC. 5(2)(A) OF THE AC T IS SUBJECT TO THE PROVISIONS OF THIS ACT. AS PER SEC. 90(2) OF THE ACT, WHEN THERE IS A DTSAA BETWEEN TWO COUNTRIES THE PROVISIONS OF THE INDIAN I.T. ACT SHALL APPLY TO TH E EXTENT THEY ARE MORE BENEFICIAL TO THE ASSESSEE. THE LD. C.I.T.(A) FURTHER STATED THAT TH E PROVISIONS OF ARTICLE 15(1) OF THE DTAA PROVIDE THAT THE SALARY OF THE ASSESSEE WILL B E TAXABLE IN SINGAPORE AND THE ASSESSEE HAS ALSO CLAIMED IT THAT WAY. THEREFORE, PROVISION OF SEC. 5(2)(A) OF THE ACT WILL 3 NOT APPLY TO THE CASE OF THE ASSESSEE AND THE SALAR Y WILL BE TAXABLE IN SINGAPORE AND NOT IN INDIA. HE, THEREFORE, REQUESTED TO UPHOLD THE A CTION OF THE LD. C.I.T.(A). 6. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL PLACED ON RECORD. SUB-RULE (3) OF RULE 46A OF THE I.T. RULES READS AS UNDER : (3) THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS TH E CASE MAY BE, THE COMMISSIONER (APPEALS)] SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE [ASSESSING OFFICER] HAS BEE N ALLOWED A REASONABLE OPPORTUNITY ( A ) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS-E XAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR ( B ) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITNES S IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. SUB-RULE(3) OF RULE 46A CLEARLY PROVIDES THAT THE LD. CIT(A) SHALL NOT TAKE INTO ACCOUNT ANY ADDITIONAL EVIDENCE UNLESS THE A.O. HAS BEEN AL LOWED A REASONABLE OPPORTUNITY TO EXAMINE THE FRESH EVIDENCE OR TO PRODUCE ANY EVIDEN CE IN REBUTTAL OF THE EVIDENCE PRODUCED BY THE ASSESSEE. IN THE CASE UNDER CONSI DERATION BEFORE US, ADMITTEDLY, THE ASSESSEE HAD PRODUCED THE ADDITIONAL EVIDENCE BEFOR E THE LD. CIT(A), WHO ADMITTED THE SAME BUT DID NOT ALLOW OPPORTUNITY TO THE A.O. TO G IVE HIS REMAND REPORT, AS PROVIDED UNDER SUB-RULE(3) OF RULE 46A OF THE RULES. IN VIE W OF THE ABOVE, WE FIND FORCE IN THE SUBMISSION OF THE LD. DEPARTMENTAL REPRESENTATIVE A ND, THEREFORE, SET ASIDE THE ORDER OF LD. C.I.T.(A) AND RESTORE THE MATTER TO HIM FOR COM PLYING WITH RULE 46A OF THE RULES. 7. IN THE CROSS-OBJECTION, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) ERRED IN REJECTING GROUND NOS. 1 TO 4 FILED BY THE ASSESS EE CHALLENGING THE REASSESSMENT PROCEEDINGS ON VARIOUS TECHNICAL GROUNDS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, TAXABILITY OF ANY INCOME IN INDIA IN THE HANDS OF THE NON RESIDENT IS GOVERNED BY THE PROVISIONS OF INDIAN LAW WHICH DOES NOT REQUIRE ANY PRECONDITION TO NECESSIT ATE A NON RESIDENT TO PROVE TAX PAYMENT IN A FOREIGN COUNTRY IN ORDER TO CLAIM A TA X TREATY BENEFIT IN INDIA. 8. SINCE WE HAVE ALREADY SET ASIDE THE ORDERS OF T HE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF LD. C.I.T.(A) TO DECIDE A FRESH AFTER OBTAINING THE REMAND REPORT 4 FROM THE A.O., THE ISSUES RAISED IN THE CROSS-OBJEC TION ARISING AGAINST THE REVENUES APPEAL WILL BECOME INFRUCTUOUS AND THE SAME IS DISM ISSED AS SUCH. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DEE MED TO BE ALLOWED FOR STATISTICAL PURPOSES, WHEREAS THE CROSS-OBJECTION OF THE ASSESS EE IS DISMISSED AS INFRUCTUOUS. 0 / !1 2 1$ 03 THIS ORDER IS PRONOUNCED IN OPEN COURT ON 29.3.11. SD/- SD/- ( . . . . . . . . ) ( . .. . . .. . ) ! (D.K. TYAGI) , JUDICIAL MEMBER (C.D.RAO) , ACCOUNTANT MEMBER ORDER PRONOUNCED IN THE COURT ON 29.3.11. SD/- SD/- AM (CDR) JM (MS) ( (( (! ! ! !) )) ) DATE: 29 -03-2011 / 4 .##5 65&7- COPY OF THE ORDER FORWARDED TO: 1. *+ / THE APPELLANT : A.C.I.T., CIRCLE-24, KOLKATA. 2 .*+ / THE RESPONDENT : SRI SHANKAR MOITRA, 42/217, NEW BA LLYGUNGE, FLAR NO.3A, KOLKATA-700 039 3. #/$ () : THE CIT(A)-XIV, KOLKATA. 4. #/$/ THE CIT, KOL- 5 . ;# .#$ / DR, ITAT, KOLKATA BENCHES, KOLKATA 6 . GUARD FILE . 5 .#/ TRUE COPY, /$1/ BY ORDER, (DKP) < = / DY/ASST. REGISTRAR .