Varun Vikram Singh, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 5823/DEL/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7169 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 15-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Residential status; Salary income; Deemed to accrue or arise in india; Revised return
• Section: 5(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: SMC , NEW DELHI) BEFORE SHRI N. K. BILLAIYA , ACCOUNTANT MEMBER ITA NO: - 5823 /DEL/20 1 6 ( ASSESSMENT YEAR: 20 1 2 - 13 ) VARUN VIKRAM SINGH C/O SHRI NAVEEN GOEL, ADVOCATE 521/55, FRIENDS COLONY, NEAR BREAD FACTORY, MUZAFFARNAGAR PAN CITPS8107B VS. ITO WARD 2 (1) MUZAFFARNAGAR APPELLANT RESPONDENT ASSESSEE BY : SH. RAJEEV SAXENA , A DVOCATE REVENUE BY : SHRI SURENDER PAL, SR. DR DATE OF HEARING : 2 6 .0 9 .2018. DATE OF PRONOUNCEMENT : 28 . 09. 2018. ORDER PER: N. K. BILLAIYA , A M THI S APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS ] , MUZAFFARNAGAR DATED 24.08.2016 PERTAINING TO ASSESSMENT YEAR 20 1 2 - 13 . 2. THE GRIEVANCE OF THE ASSESSEE READ AS UNDER : - 1 . THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) AND THE ASSESSING OFFICER HAVE ERRED IN LAW AS WELL ON FACTS IN TREATING RS. 16,09.010/ - EARNED AS AN EMPLOYEE FROM FOREIGN SHIP OU T SIDE INDIA AS TAXABLE INCOME BECAUSE: ( A ) THEY HAVE FAILED TO NOTICE THAT ASSESSEE DURING THE YEAR WAS REMAINED OUT SIDE FOR MORE 2 ITA NO. - 5823 /DEL/201 6 THAN 203 DAYS FOR THE PURPOSE OF EMPLOYMENT HENCE WAS NON RESIDENT U/S 6 OF THE INCOME TAX ACT. READ WITH EXPLANATION 1(A). ( B ) THEY HAVE FAILED TO APPRECIATE THAT ONLY INCOME RECEIVED OR DEEMED TO BE RECEIVED OR ACCRUES OR ARISES OR DEEMED TO ACCRUE OR ARISE IN INDIA IS TAXABLE OF THE NON RESIDENT U/S 5(2) READ WITH SECTION 9 OF THE INCOME TAX ACT. BUT NOT ANY INCOME EARNED OUT S IDE INDIA. 2 . THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN TREATING THE RECTIFICATION OF DEFECT/MISTAKE IN THE RETURN AS REVISED RETURN BECAUSE: ( A ) RESIDENTIAL STATUS OF AN INDIVIDUAL IS FACT AND CAN BE RECTIFIED AN Y TIME AS ASSESSEE/APPELLANT WAS OUT OF INDIA FOR MORE THAN 203 DAYS HE HAS TO BE TREATED AS NON - RESIDENT AS PER SECTION 6. ( B ) INCOME EARNED OUT SIDE INDIA BY THE NON - RESIDENT IS NOT TAXABLE IN INDIA AND THIS FACT HAS TO BE BROUGHT ON RECORD BEING ALSO A MIST AKE AND SO CAN BE RECTIFIED. 3. DU R ING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CL AIMED DEDUCTION U/S 90/91 OF THE ACT. THE ASSESSEE WAS SPECIFICALLY ASKED TO EXPLAIN AND JUSTIFY H IS CLAIM OF DEDUCTION. IN HIS REPLY THE ASSESSEE SUBMITTED THAT HE IS AN NRI AND IS WORKING IN MERCHANT NAVY. IT WAS EXPLAINED THAT BY MISTAKE H IS NRI INCOME HAS BEEN OFFERED FOR TAXATION WHICH IN ACTUAL DID NOT COME WITHIN THE PURVIEW UNDER TAXATION IN INDIA. 4. THE EXPLANATION OF THE ASSESSEE DID NOT FIND ANY FAVOUR WITH THE ASSESSING OFFICER DEDUCTION U/S 90/91 WAS DENIED. ASSESSEE CARRIED T HE MATTER BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. 5. BEFORE US THE COUNSEL FOR THE ASSESSEE STATED THAT THE MISTAKE IN THE RETURN OF INCOME WAS RECTIFIED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND IT WAS EXPLAINED THAT INCOME FROM SALARY AS NOT TA XABLE IN INDIA. IT IS THE SAY OF THE COUNSEL THAT FACTS HAVE NOT BEEN APPRECIATED BY THE LOWER AUTHORITIES. 3 ITA NO. - 5823 /DEL/201 6 6. THE DR SUPPORTED THE FINDINGS OF THE ASSESSING OFFICER. 7. I HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO D ISPUTE THAT THE ASSESSEE IS WORKING IN FOREIGN SHIPPING COMPANY AS A SALARIED EMPLOYEE. IT APPEARS THAT THE ASSESSEE REMAINED ON DUTY FOR 203 DAYS OUT OF COUNTRY. IT FURTHER APPEARS THAT THE FACTS OF THE CASE HAVE NOT BEEN PROPERLY APPRECIATED BY THE ASS ESSING OFFICER. IN THE INTEREST OF JUSTICE AND FAIR PLAY I RESTORE THIS ISSUE TO THE FILES OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE AFRESH AFTER CONSIDERING ALL THE DOCUMENTARY EVIDENCES BROUGHT ON RECORD BY THE ASS ESSEE. THE ASSESSEE IS DIRECTED TO FURNISH ALL THE RELEVANT DETAILS TO JUSTIFY HIS CLAIM. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 . 09.2018 . SD/ - (N. K. BILLAIYA) ACCOUNTANT MEMBER DATED: 28 .0 9 .2018 NEHA / - COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 ITA NO. - 5823 /DEL/201 6 DATE OF DICTATION 27.09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28.09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 28.09.2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 28.09.2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 28.09.2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 28.09.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 28.09.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28.09.2018 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER