DDIT (IT)-1(2), MUMBAI V. D.B. INTERNATIONAL (ASIA) LTD, MUMBAI

ITA 4583/MUM/2009

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8510 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: L
• Next Hearing Date: 06-06-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 06-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JASBIR CHA UHAN
• Keywords: Double taxation relief; Opportunity of being heard; Capital receipt
• Section: 143(3); 260A; 90

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI BEFORE SHRI J.P. BOAZ, ACCOUNTANT MBMER, AND SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 4583/MUM./2009 ( ASSESSMENT YEAR : 20 05 06 ) DY. DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) 1(2) BALLARD ESTATE, N.M. ROAD MUMBAI 400 038 . APPELLANT V/S D.B. INTERNATIONAL (ASIA) LTD. C/O BSR & CO., KPMG HOUSE 448, KAMALA MILLS COMPOUND SENAPATI BAPAT MARG LOWER PARE, MUMBAI 400 013 PAN AABCB13836K . RESPONDENT REVENUE BY : SHRI JASBIR CHAUHAN ASSESSEE BY : SHRI P.J. PARDIWALLA A/W SHRI NIRAJ SHETH DATE OF HEARING 06 .0 6 .2016 DATE OF ORDER 29.06.2016 O R D E R PER SAKTIJIT DEY, J.M. INSTANT APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 22 ND MAY 2009, PASSED BY THE LEARNED COMMISSIONER (APPEALS) XXXI, MUMBAI, FOR THE ASSESSMENT YEAR 2005 06. 2. FOR THE PURPOSE OF RECORD, IT NEEDS TO BE STATED THAT THIS APPEAL WAS DISPOSED OFF EARLIER, VIDE ORDER DATED 3 RD OCTOBER 201 2, HOWEVER, THE TRIBUNAL, IN AN APPLICATION FILED BY THE DEPARTMENT BEING M.A. 2 D.B. INTERNATIONAL (ASIA) LTD. NO.192/MUM./2015, VIDE ORDER DATED 11 TH APRIL 2016, RECALLED ITS EARLIER ORDER PASSED IN ITA NO.4583/MUM./2009, FOR THE PURPOSE OF DECIDING THE ADMISSIBILITY OF THE ADDITIONAL G ROUND RAISED BY THE REVENUE AND IF ADMITTED, THEN TO PROCEED FOR ADJUDICATION OF THE ADDITION AL GROUND O N MERITS. THE ADDITIONAL GROUND PROPOSED TO BE RAISED BY THE DEPARTMENT IS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, TH E LEARNED COMMISSIONER (APPEALS) ERRED IN GRANTING THE RELIEF ON ARTICLE 13 OF INDIA SINGAPORE DTAA TO THE ASSESSEE FOR THE GAINS ON CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACTS AS CAPITAL GAINS IGNORING PROVISIONS OF ARTICLE 24 OF THE TAX TREATY W HICH PROVIDES FOR RESTRICTION OF SUCH RELIEF ONLY TO THE EXTENT SUBJECT INCOME HAS BEEN REMITTED TO SINGAPORE, WHICH HAS NOT BEEN SHOWN TO HAVE BEEN COMPLIED WITH, IN THIS CASE. 3. BEFORE DECIDING THE ADMISSIBILITY OF THE AFORESAID ADDITIONAL GROUND RAISED BY THE DEPARTMENT, IT IS NECESSARY TO BRIEFLY DEAL WITH THE FACTS GIVING RISE TO FILING OF THE PRESENT APPEAL BY THE DEPARTMENT. 4. BRIEFLY STATED, THE ASSESSEE COMPANY INCORPORATED IN SINGAPORE IS ENGAGED IN PORTFOLIO INVESTMENT ACTIVITIES AND INVESTMENT IN TO THE INDIAN CAPITAL MARKET. FOR SUCH PURPOSE, THE ASSESSEE IS REGISTE RED AS A FOREIGN INSTITUTIONAL I NVESTOR (FII) WITH THE SECURITIES AND EXCHANGE BOARD OF INDIA. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ASSESSEE FILED ITS RETURN OF INCOME ON 31 ST OCTOBER 2005, DECLARING TOTAL INCOME AT NIL AFTER CLAIMING IMMUNITY FROM TAXATION OF SHORT TERM CAPITAL GAIN ON SALE OF TREASURY BILLS AMOUNTING TO ` 27,01,95,656 UNDER THE 3 D.B. INTERNATIONAL (ASIA) LTD. PROVISIONS OF INDIA SINGAPORE DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA). THE ASSESSI NG OFFICER WHILE COMPLETING THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT, VIDE ORDER DATED 14 TH DECEMBER 2007, ACCEPTED ASSESSEES CLAIM THAT SHORT TERM CAPITAL GAIN ON SALE OF TREASURY BILLS IS NOT TAXABLE UNDER ARTICLE 7 AND 13(6) OF INDIA SINGAPORE DT AA. HOWEVER, HE FOUND THAT THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR HAS ALSO DERIVED GAIN OF ` 13,15,78,250, FROM CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACT . HOWEVER, ON A PERUSAL OF THE COMPUTATION OF INCOME FURNISHED BY THE ASSESSEE HE NOTIC ED THAT THE ASSESSEE HAS CLAIMED GAIN DERIVED FROM CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACT ALSO TO BE EXEMPT UNDER SECTION 90 OF THE ACT R/W ARTICLE 7 AND 13(6) OF DTAA. THE ASSESSING OFFICER, HOWEVER, WAS OF THE VIEW THAT THE TRANSACTIONS RELATI NG TO CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACT DO NOT COME WITHIN THE PURVIEW OF SECTION 45(1), HENCE, IS NOT TAXABLE UNDER THE HEAD CAPITAL GAIN . HE ALSO OBSERVED THAT THE GAIN OF ` 13,15,78,250, FROM CANCELLATION OF FORWARD FOREIGN EXCHANGE CO NTRACT IS NOT ON ACCOUNT OF ANY ADVENTURE IN THE NATURE OF TRADE OR BUSINESS. HE, THEREFORE, CONCLUDED THAT THE GAIN OF ` 13,15,78,250 HAS TO BE TAXED UNDER THE HEAD INCOME FROM OTHER SOURCES . REFERRING TO ARTICLE 23 OF INDIA SINGAPORE DTAA, THE ASSESSIN G OFFICER OBSERVED , AS PER THE SAID PROVISION, INCOME WHICH ARE NOT EXPRESSLY MENTIONED IN THE OTHER ARTICLES OF DTAA CAN BE TAXED 4 D.B. INTERNATIONAL (ASIA) LTD. IN ACCORDANCE WITH THE TAX LAWS OF RESPECTIVE CONTRACTING STATES. ON THE BASIS OF THIS REASONING, THE ASSESSING OFFICER BROUG HT TO TAX THE AMOUNT OF ` 13,15,78,250 AS INCOME FROM OTHER SOURCES. BEING AGGRIEVED OF THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 5. THE LEARNED COMMISSIONER (APPEALS), WHILE DECIDING THE APPEAL OF THE ASSESSEE HELD THAT THE GAIN DERIVED FROM CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACT IS A CAPITAL RECEIPT IN THE HANDS OF THE ASSESSEE, HENCE, IS NOT TAXABLE AS INCOME FROM OTHER SO URCES. ACCORDINGLY, HE ALLOWED ASSESSEES APPEAL. BEING AGGRIEVED OF THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS), DEPARTMENT AGITATED THE ISSUE BEFORE THE TRIBUNAL. THE TRIBUNAL IN THE ORDER REFERRED TO ABOVE, DISMISSED THE APPEAL OF THE DEPARTM ENT BY UPHOLDING THE ORDER OF THE FIRST APPELLATE AUTHORITY. NOT BEING SATISFIED WITH THE ORDER OF THE TRIBUNAL, THE DEPARTMENT WENT IN APPEAL BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT UNDER SECTION 260A OF THE ACT BY RAISING THE FOLLOWING SUBSTANTIAL QUESTION S OF LAW : A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ITAT WAS RIGHT IN HOLDING INCOME ARISING FROM EARLY SETTLEMENT OF FORWARD FOREIGN CONTRACT IS TO TREATED AS CAPITAL GAIN AS AGAINST THE INCOME FROM OTHER SOURC ES ASSESSED BY THE ASSESSING OFFICER? B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ITAT HAS ERRED IN GRANTING RELIEF OF ARTICLE 13 5 D.B. INTERNATIONAL (ASIA) LTD. OF THE INDIA SINGAPORE DTAA TO THE ASSESSEE FOR THE GAINS ON CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACT BY TREATING IT AS CAPITAL GAIN. C) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ITAT HAS ERRED IN IGNORING THE PROVISION OF ARTICLE 24 OF THE INDIA SINGAPORE DTAA WHICH PROVIDES FOR RESTRICTION OF SUCH REL IEF ONLY TO THE EXTENT OF THE INCOME THAT HAS BEEN REMITTED TO SINGAPORE. THE I?TAT HAS ALSO ERRED IN NOT APPRECIATING THAT THE ASSESSEE HAS NOT COMPLIED WITH ARTICLE 24 OF THE INDIA SINGAPORE DTAA AS IT HAS NOT REMITTED THE PROCEEDS TO SINGAPORE. 6. THE A PPEAL OF THE DEPARTMENT WAS ADMITTED BY THE HIGH COURT IN ORDER DATED 10 TH JUNE 2015, IN INCOME TAX APPEAL NO.1443 AND 1409 OF 2013, ON QUESTION NO. (A) ONLY. AS FAR AS QUESTION NO.(C) IS CONCERNED, THE HONBLE HIGH COURT TAKING NOTE OF THE SUBMISSIONS OF T HE LEARNED COUNSEL APPEARING FOR THE REVENUE TO THE EFFECT THAT THE DEPARTMENT IN THE APPEAL FILED BEFORE THE TRIBUNAL HA D NOT RAISED THE ISSUE NOR HAD ARGUED IT DECLINED TO ENTERTAIN THE QUESTION PROPOSED BY THE DEPARTMENT. THEREAFTER, THE DEPARTMENT FILE D M.A. NO.192/MUM./ 2015, AND AS DISCUSSED BY US IN THE EARLIER PART OF THE ORDER , THE TRIBUNAL WHILE DISPOSING OFF THE M.A. RECALLED THE APPEAL ORDER FOR THE LIMITED PURPOSE OF EXAMINING THE ADMISSIBILITY OF THE ADDITIONAL GROUND RAISED BY THE DEPARTMENT. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED BEFORE US THAT THE ISSUE RAISED IN THE ADDITIONAL GROUND BEING A LEGAL ISSUE THE GROUND RAISED BY THE DEPARTMENT SHOULD BE ADMITTED. 6 D.B. INTERNATIONAL (ASIA) LTD. 8. HE SUBMITTED, AS PER ARTICLE 24 OF THE INDO SINGAPORE DTAA, THE RELIEF UNDER ARTICLE 13, SHALL BE RESTRICTED TO THE EXTENT OF INCOME REMITTED BY THE ASSESSEE TO SINGAPORE. HE SUBMITTED, AS THE ASSESSEE HAS FAILED TO PROVE THAT INCOME DERIVED FROM CANCELLATION OF FORWAR D FOREIGN EXCHANGE CONTRACT WAS REMITTED TO SINGAPORE, THE LEARNED COMMISSIONER (APPEALS) WAS NOT JUSTIFIED IN GRANTING RELIEF TO THE ASSESSEE UNDER ARTICLE 13 OF THE DTAA. 9. LEARNED AUTHORISED REPRESENTATIVE ON THE OTHER HAND SUBMITTED, ADDITIONAL GROUND R AISED BY THE DEPARTMENT IS NOT MAINTAINABLE AS IT REQUIRES INVESTIGATION INTO FRESH FACTS WHICH ARE NOT AVAILABLE ON RECORD. 10. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT HA S HIMSELF HELD THAT THE CAPITAL GA IN IS NOT TAXABLE AS PER INDO SINGAPORE DTAA. HE SUBMITTED, U NDER ARTICLE 13(6), THE INCOME WHICH DO NOT FALL WITHIN THE PURVIEW OF CLAUSE (1) TO (5) OF ARTICLE 13, IS TO BE TAXED IN CONTRACTING STATE, WHERE THE PERSON EARNING SUCH INCOME IS A TAX RESIDENT . HE SUBMITTED AS PER ARTICLE 24 OF INDIA SINGAPORE DTAA, THE INCOME EARNED MUST BE EXEMPT IN INDIA AND SUCH INCOME IS TAXABLE IN SINGAPORE ON RECEIPT BASIS. HE SUBMITTED, AS PER ARTICLE 20, 21 AND 22 OF INDO SINGAPORE DTAA, THE INCOME EARNED BY THE ASSESS EE FROM CANCELLATION OF FORWARD 7 D.B. INTERNATIONAL (ASIA) LTD. FOREIGN EXCHANGE CONTRACT IS NOT EXEMPT IN INDIA. THEREFORE, ARTICLE 24 IS NOT APPLICABLE. HE SUBMITTED, UNDER ARTICLE 13 OF INDO SINGAPORE DTAA, INDIA HAS CEDED THE RIGHT TO TAX CAPITAL GAIN IN FAVOUR OF SINGAPORE. THEREFOR E, INCOME DERIVED FROM CAPITAL GAIN WILL NOT COME WITHIN THE SCOPE OF TOTAL INCOME , H ENCE, THERE IS NO QUESTION OF EXEMPTION. LEARNED COUNSEL SUBMITTED, EVEN OTHERWISE ALSO, IN SINGAPORE, ASSESSEE IS TAXABLE ON ITS ENTIRE INCOME AND NOT ONLY ON REMITTANCE FROM INDIA. LEARNED COUNSEL SUBMITTED, WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER HAS NOT AT ALL GONE INTO THIS ISSUE AS HE HAS HELD THE GAIN DERIVED FROM CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACT AS INCOME FROM OTHER SOURCES. THEREFORE , WHETHER THE ASSESSEE HAS REMITTED ITS INCOME FROM FOREIGN EXCHANGE FORWARD CONTRACT TO SINGAPORE REQUIRES EXAMINATION OF RECORD AND INVESTIGATION INTO FRESH FACTS WHICH CANNOT BE DONE THROUGH ADDITIONAL GROUND AS IT REQUIRES FRESH INVESTIGATION INTO FACT S. HE, THEREFORE, SUBMITTED THAT THE ADDITIONAL GROUND RAISED BY THE DEPARTMENT SHOULD BE DISMISSED. 11. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS STATED ABOVE, THE EARLIER ORDER PASSED BY THE TRIBUNAL WAS RECALLED ONLY FOR THE LIMITED PURPOSE OF DECIDING ADMISSIBILITY OF THE ADDITIONAL GROUND RAISED BY THE DEPARTMENT , AND IF ADMITTED , TO DECIDE IT ON MERIT. THEREFORE, AT THE 8 D.B. INTERNATIONAL (ASIA) LTD. OUT SET, IT NEEDS TO BE DECIDED WHETHER THE ADDITIONAL GROUND RAISED BY THE DEP ARTMENT CAN BE ADMITTED. BEFORE DECIDING THE ISSUE, IT IS NECESSARY TO LOOK INTO THE RELEVANT STATUTORY PROVISION EMPOWERING THE TRIBUNAL TO DECIDE AN APPEAL FILED BEFORE IT. AS PER SECTION 254 OF THE ACT, WHILE DECIDING THE APPEAL FILED BEFORE IT, THE TRIBUNAL IS EMPOWERED TO PA S S SUCH ORDER AS IT THINKS FIT AFTER GIVING BOTH THE PARTIES TO THE APPEAL OPPORTUNITY OF BEING HEARD. RULE 11 OF THE ITAT RULES, 1963, PROVIDES AN OPPORTUNITY TO THE APPE L L ANT S TO RAISE ADDITIONAL GROUND WITH THE LEAVE OF THE TR IBUNAL. THE HON'BLE SUPREME COURT IN CIT V/S NTPC LTD., 229 ITR 383, WHILE DEALING WITH THE ISSUE OF ADMISSION OF ADDITIONAL GROUND BEFORE THE TRIBUNAL, HELD THAT THE TRIBUNAL IS EMPOWERED TO ADMIT AND ADJUDICATE AN ADDITIONAL GROUND RAISED BY THE APPELLAN T IF FACTS RELATING TO SUCH ADDITIONAL GROUND ARE ALREADY AVAILABLE ON RECORD AND IT DOES NOT REQUIRE INVESTIGATION INTO FRESH FACTS. THUS, THE PRINCIPLE EMERGING FROM THE RATIO LAID DOWN IS , AN ADDITIONAL GROUND RAISED ON A LEGAL ISSUE CAN BE ENTERTAINED BY THE TRIBUNAL IF PRIMARY FACTS RELATING TO THAT GROUND ARE ALREADY AVAILABLE ON RECORD. IN THE PRESENT CASE, ON A PERUSAL OF THE ADDITIONAL GROUND RAISED BY THE DEPARTMENT, IT IS OBSERVED THAT THE DEPARTMENT IS CHALLENGING THE DECISION OF THE LEARNED COM MISSIONER (APPEALS) IN HOLDING THE GAIN DERIVED FROM CANCELLATION OF FORWARD EXCHANGE FOREIGN CONTRACT NOT TAXABLE UNDER ARTICLE 13 OF THE INDO SINGAPORE DTAA. 9 D.B. INTERNATIONAL (ASIA) LTD. WHILE RAISING THE AFORESAID GROUND, IT HAS BEEN CONTENDED BY THE DEPARTMENT, THE RELIEF TO BE GRANTED UNDER ARTICLE 13 OF THE ACT HAS TO BE RESTRICTED TO THE AMOUNT OF INCOME REMITTED BY ASSESSEE TO SINGAPORE IN TERMS OF ARTICLE 24 OF THE INDO SINGAPORE DTAA. IT IS THE CONTENTION OF THE DEPARTMENT THAT THE ASSESSEE HAS NOT PROVED THE FACT THA T IT HAS REMITTED ITS INCOME TO SINGAPORE . O N THE OTHER HAND, IT HAS BEEN CONTENDED ON BEHALF OF THE ASSESSEE THAT THE ENTIRE INCOME ARISING IN INDIA FROM CANCELLATION O F FORWARD FOREIGN EXCHANGE CONTRACT HAS BEEN REMITTED TO SINGAPORE AND THE ASSESSEE W AS ALSO TAXED ON ITS ENTIRE INCOME IN SINGAPORE. TO PROVE SUCH FACT, THE LEARNED AUTHORISED REPRESENTATIVE HAS PRODUCED BEFORE US A LETTER DATED 1 ST MARCH 2016, ISSUED BY I NLAND R EVENUE A UTHORITY OF SINGAPORE, STATING THAT INCOME DERIVED FROM TRADING OF EQUI TIES / DEBT SECURITIES / DERIVATIVES IN INDIA DURING THE ASSESSMENT YEAR 2005 06, HAD BEEN REPORTED TO INCOME TAX IN SINGAPORE AND FURTHER THE ASSESSEE WAS SU BJECTED TO TAX UNDER SINGAPORE I NCOME TAX W IT H REFERENCE TO REFERS TO THE FULL AMOUNT AND NOT BY R EFERENCE TO THE AMOUNT REMITTED OR RECEIVED IN SINGAPORE. THUS, AS COULD BE SEEN, WHETHER THE ASSESSEE HAS REMITTED THE INCOME FROM GAIN DERIVED FROM CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACT IS A DISPUTED ISSUE BETWEEN THE ASSESSEE AND THE DEPARTMENT . W HILE THE DEPARTMENT IS CONTENDING THAT THE ASSESSEE HAS NOT REMITTED THE INCOME DERIVED FROM CANCELLATION OF FORWARD 10 D.B. INTERNATIONAL (ASIA) LTD. FOREIGN EXCHANGE CONTRACT TO SINGAPORE , THE ASSESSEE HAS CLAIMED THAT IT HAS REMITTED SUCH INCOME TO SINGAPORE AND HAS ALSO BE EN TAXED IN SINGAPORE. ON A PERUSAL OF THE ASSESSMENT ORDER IT IS PATENT AND OBVIOUS THAT THE ASSESSING OFFICER HAS NOT AT ALL EXAMINED THIS ASPECT OR HAS GONE INTO THE ISSUE AS TO WHETHER THE ASSESSEE HAS REMITTED GAIN DERIVED FROM FOREIGN EXCHANGE FORWAR D CONTRACT TO SINGAPORE OR NOT. THE ASSESSING OFFICER HAS SIMPLY DELIBERATED ON THE PROPER HEAD UNDER WHICH INCOME DERIVED FROM CANCELLATION OF FOREIGN EXCHANGE FORWARD CONTRACT IS TO BE ASSESSED AND HAS ULTIMATELY HELD THAT SUCH INCOME IS TO BE ASSESSED U NDER THE HEAD INCOME FROM OTHER SOURCES , INSTEAD OF CAPITAL GAIN AS CLAIMED BY THE ASSESSEE. THUS, AT NO STAGE THE ISSUE , WHETHER THE GAIN DERIVED FROM CANCELLATION OF FOREIGN EXCHANGE FORWARD CONTRACT HAS BEEN REMITTED TO THE SINGAPORE HAS BEEN FACTUALL Y EXAMINED BY THE DEPARTMENT BY VERIFYING THE BOOKS OF ACCOUNT OR ANY OTHER DOCUMENTS. UNDISPUTEDLY, WHETHER THE ASSESSEE HAS REMITTED THE INCOME TO SINGAPORE IS PURELY A FACTUAL ISSUE AND HAS TO BE DETERMINED BY EXAMINING NOT ONLY THE BOOKS OF ACCOUNT BUT VARIOUS OTHER DOCUMENTS. THIS EXERCISE HA S NOT BEEN DONE EITHER BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDING OR AT ANY OTHER STAGE. THUS, IN OUR VIEW, THE ISSUE RAISED BY THE DEPARTMENT IN THE ADDITIONAL GROUND REQUIRES FRESH INVESTIGATION IN TO FACTS WHICH ARE NOT AVAILABLE ON RECORD EITHER AT THE TIME OF ASSESSMENT 11 D.B. INTERNATIONAL (ASIA) LTD. PROCEEDINGS OR EVEN SUBSEQUENTLY. FURTHER, AS COULD BE SEEN, THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT HAS HIMSELF HELD THAT THE INCOME DERIVED FROM CAPITAL GAIN IS NOT TAXABLE IN TERMS OF INDO SINGAPORE DTAA. FOR THAT REASON ALONE, HE OPTED TO TAX THE GAIN DERIVED FROM CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACT AS INCOME FROM OTHER SOURCES. THUS, AT THIS BELATED STAGE, THE PLEA RAISED BY THE DEPARTMENT THAT THE A SSESSEE HAS NOT REMITTED THE INCOME DERIVED FROM CANCELLATION OF FORWARD FOREIGN EXCHANGE CONTRACT TO SINGAPORE, WHICH WAS NEVER RAISED OR EXAMINED BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDING OR EVEN SUBSEQUENTLY CANNOT BE ENTERTAINED AS IT R EQUIRES FRESH INVESTIGATION INTO FACTS WHICH ARE NOT AVAILABLE ON RECORD. FOR THE AFORESAID REASONS AND KEEPING IN VIEW THE PRINCIPLE LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT V/S NATIONAL THERMAL POWER CORP. (SUPRA) , WE DECLINE TO ADMIT TH E ADDITIONAL GROUND RAISED BY THE DEPARTMENT, WHICH IS ACCORDINGLY DISMISSED. 12. IN THE RESULT, DEPARTMENTS APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.06.2016 SD/ - J.P. BOAZ ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 29.06.2016 12 D.B. INTERNATIONAL (ASIA) LTD. COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI