ITO (IT) 3(1), MUMBAI V. RAMESH KUMAR GOENKA, MUMBAI

ITA 4941/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9143 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: L
• Next Hearing Date: 12-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 22-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Double taxation relief

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES L, MUMBAI .. , ! '# $% , & !, ' BEFORE SHRI R.S.SYAL, AM AND SHRI AMIT SHUKLA, JM ./ ITA NO.4941/MUM/2011 ( &) * &) * &) * &) * / / / / ASST YEAR : 2007-2008) THE INCOME TAX OFFICER (INTERNATIONAL TAXATION) 3(1) MUMBAI. SHRI RAMESH KUMAR GOENKA 5/D, SHANAZ, 90 NAPEAN SEA ROAD MUMBAI 400 006 PAN : AAABPG1145P. ( +, / // / APPELLANT) ) ) ) ) / VS. ( -.+,/ RESPONDENT) +, / // / 0 0 0 0 / APPELLANT BY : SHRI MAHESH KUMAR -.+, / 0 / 0 / 0 / 0 / RESPONDENT BY : SHRI SUNIL HIRAWAT ) / # / / / / DATE OF HEARING : 12.12.2012 12* / # / DATE OF PRONOUNCEMENT : 14.12.2012 ! ! ! !$ $ $ $ / / / / O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 03.0 3.2011 IN RELATION TO THE ASSESSMENT YEAR 2007-2008. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE DELETION OF ADDITION MADE ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON SHARES BY IGNORING THAT THE ASSESSEE WAS NOT PAYING ANY TAX I N DUBAI AND HENCE WAS NOT RESIDENT OF DUBAI UNDER ARTICLE 4 OF DTAA. 3. AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE PLACED ON RECORD A COPY OF AN ORDER PASSED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING ASSESSMENT Y EAR IN ITA ITA NO.4941/MUM/2011 SHRI RAMESH KUMAR GOENKA. 2 NO.3562/MUM/ 2009. IT WAS SUBMITTED THAT THE ORDER PASSED BY THE CIT(A) INVOLVING SIMILAR ISSUE FOR THE IMMEDIATELY PRECEDING ASSESSMENT YEAR HAS BEEN UPHELD BY THE TRIBUNAL. TH E LEARNED DEPARTMENTAL REPRESENTATIVE WAS FAIR ENOUGH TO CONC EDE THAT THE FACTS AND CIRCUMSTANCES OF THE INSTANT YEAR ARE SI MILAR TO THOSE OF THE PRECEDING YEAR CONSIDERED AND DECIDED BY THE TRIBUN AL. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS FOUND THAT THE T RIBUNAL VIDE ITS ORDER DATED 16.04.2010 IN ASSESSEES OWN CASE FOR THE IMM EDIATELY PRECEDING YEAR HAS HELD THAT THE EXPRESSION LIABLE TO TAX AS EMPLOYED IN ARTICLE 4(1) OF THE INDO-UAE DTAA DOES NOT NECESSARILY IMPLY THAT THE PERSON SHOULD ACTUALLY B E LIABLE TO TAX IN THAT CONTRACTING STATE. IN VIEW OF THE ADMISSION BY BOTH THE SIDES THAT THE FACTS FOR THE CURRENT YEAR ARE SIMILAR TO THOSE FOR THE PRECEDING YEAR, WE, RESPECTFULLY FOLLOWING THE PRECEDENT, UPH OLD THE IMPUGNED ORDER. 5. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS 14 TH DAY OF DECEMBER, 2012. !$ / 12* 3!)4 2 / 5 SD/- SD/- (AMIT SHUKLA) (R.S.SYAL) & ! & ! & ! & ! / JUDICIAL MEMBER ! ! ! ! / ACCOUNTANT MEMBER MUMBAI ; 3!) DATED : 14 TH DECEMBER, 2012. DEVDAS* ITA NO.4941/MUM/2011 SHRI RAMESH KUMAR GOENKA. 3 !$ / -&#'6 76*# !$ / -&#'6 76*# !$ / -&#'6 76*# !$ / -&#'6 76*#/ COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. 8 () / THE CIT(A)-X, MUMBAI. 4. 8 / CIT 5. 6;5 -&#&) , , / DR, ITAT, MUMBAI 6. 5< = / GUARD FILE. !$) !$) !$) !$) / BY ORDER, .6# -&# //TRUE COPY// > > > >/ // /? @ ? @ ? @ ? @ ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI