Shri Jitendrakumar Pandey, JAMNAGAR V. The Income Tax Officer, (Inter. Taxa.), GANDHIDHAM

ITA 604/RJT/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2409 (ITAT-RAJKOT)
• Duration Of Justice: 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-12-2015
• Assessment Year: 2012-2013
• Appeal Filed On: 08-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S ANJARIA
• Keywords: Residential status; Salary income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AH MEDABAD] (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO: 604/RJT/2015 (ASSESSMENT YEAR: 2012-13) SHRI JITENDRAKUMAR PANDEY, AMBIENCE A-101, NR. VISHAL INTERNATIONAL HOTEL KHAMBHALIA DWARKA HIGHWAY DIST.-JAMNAGAR V/S INCOME TAX OFFICER, INTERNATIONAL TAXATION GANDHIDHAM (APPELLANT) (RESPONDENT) PAN: AGVPP9159Q APPELLANT BY : SHRI CHETAN AGARWAL, C.A. RESPONDENT BY : SHRI C.S. ANJARIA, D.R. ( )/ ORDER DATE OF HEARING : 21-12-2015 DATE OF PRONOUNCEMENT : 05-01-2016 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-13, AHMEDABAD DATED 02.11.2015 FOR A.Y. 2012-13. ITA NO 604/R JT/2015 . A.Y.2012-201 3 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS STATED TO BE A NON RESIDENT INDIVIDUAL DERIVING INCOME FROM SALARY FROM SINGAPORE BASED COMPANY. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2012-13 ON 24-09-2013 DECLARING TOTAL INCO ME AT RS. 6,19,420/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER T HE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 12.03.2015 AN D THE TOTAL INCOME WAS DETERMINED AT RS. 6,72,164/-. AGGRIEVED BY THE ORDE R OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 02.11.2015 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HA S RAISED THE FOLLOWING EFFECTIVE GROUND:- 1. HON. CIT ERRED IN LAW AS WELL ON FACT BY NOT TREATI NG SALARY INCOME EARNED BY APPELLANT AS CREW MEMBER OUTSIDE INDIA AS NOT TAXAB LE BY VIRTUE OF SECTION 5(2). 2. HON. CIT ERRED IN LAW AS WELL ON FACT BY REJECTING EVIDENCES I.E. COPY OF PASSPORT TO CLAIM RESIDENTIAL STATUS OF APPELLANT ON CONJECTURE AND SURMISE. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A.O NO TICED THAT ASSESSEE HAD RECEIVED SALARY OF RS. 7,19,420/- FROM NEPTUNE SHIP MANAGEMENT SERVICES (PTE) LTD., SINGAPORE BUT ON PERUSING THE COPY OF T HE LEDGER ACCOUNT THAT WAS SUBMITTED BEFORE HIM, HE NOTICED THAT ASSESSEE HAS STATED TO HAVE RECEIVED SALARY OF RS. 7,72,164/- AND HAD ALSO CLAI MED RELIEF U/S. 90(1) OF THE ACT. ASSESSEE WAS ASKED TO FURNISH THE DETAILS REGA RDING THE CLAIM OF RELIEF U/S. 90(1) OF THE ACT. A.O NOTED THAT ASSESSEE DID NOT FURNISH THE REQUIRED DETAILS. A.O ACCORDINGLY DENIED THE CLAIM OF RELIEF U/S. 90(1) OF THE ACT AND CONSIDERED THE INCOME OF RS. 7,72,164/- AS PER THE LEDGER ACCOUNT, THE ITA NO 604/R JT/2015 . A.Y.2012-201 3 3 INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO UPHELD THE ORDER O F A.O BY HOLDING AS UNDER:- 5.I HAVE PERUSED THE ORDER OF THE A.O AND THE WRITT EN SUBMISSIONS MADE IN THIS REGARD. THE APPELLANT HAS ADMITTED THAT THE CLAIM OF RELIEF U/S. 90(1) WAS ERRONEOUSLY MADE BY THE CHARTERED ACCOUNTANT, WHO PREPARED HIS RETURN O F INCOME. ALTERNATIVELY, THE COUNSEL SUBMITTED THAT THE APPELLANT REMAINED OUT OF INDIA FOR 255 DAYS IN THE F.Y. 2011-12 AND HENCE, THE APPELLANT WAS A NON-RESIDENT AS PER THE PROVISIONS OF SECTION 6(1)(A). THE CHART INDICATING GOING OUT AND COMING TO INDIA WAS FILED ALONGWITH CERTAIN PHOTOCOPIES OF THE PASSPORT OF THE APPELLANT. I HAVE SEEN THE C HART FILED BY THE LD. COUNSEL AND THE COPY OF PASSPORT ENCLOSED. I FIND THAT THE INCOMING TO INDIA AND OUTGOING FROM INDIA OF THE APPELLANT INDICATED IN THE CHART IS NOT COMPLET ELY CORROBORATIVE FROM THE COPIES OF PASSPORT FILED ALONGWITH THE WRITTEN SUBMISSIONS. A CCORDINGLY, I AM NOT IN A POSITION TO GIVE THE BENEFIT OF THE RELIEF, AS CLAIMED. IN A SI TUATION LIKE THIS, I AM INCLINED TO UPHOLD THE FINDINGS MADE BY THE A.O. THE APPEAL, THEREFORE , IS DISMISSED. 5. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US. 6. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THAT I N THE RETURN OF INCOME THAT WAS FILED BY THE ACCOUNTANT MISTAKE WAS COMMITTED B Y HIM IN CLAIMING RELIEF U/S. 90(1). HE FURTHER SUBMITTED THAT ASSESSEE HAD EARNED SALARY AS A NON RESIDENT CREW MEMBER OF SHIP AND THAT THE ASSESSEE HAD REMAINED OUT OF INDIA FOR 255 DAYS IN PREVIOUS YEAR 2011-12 AND WAS THEREFORE NON RESIDENT BY VIRTUE OF PROVISIONS OF SECTION 6(1)(A) AND THER EFORE THE SALARY INCOME EARNED WAS NOT TAXABLE IN INDIA AND IN SUPPORT OF W HICH HE PLACED ON RECORD HIS APPOINTMENT LETTER, WORKING OF DAYS OUTSIDE IND IA AS CREW MEMBER AND THE COPY OF PASSPORT. HE FURTHER SUBMITTED THAT LD. CIT(A) HAS NOT GIVEN ANY FINDING ON THE ASSESSEE BEING A NON RESIDENT. HE TH EREFORE SUBMITTED THAT THE ITA NO 604/R JT/2015 . A.Y.2012-201 3 4 MATTER MAY BE REMITTED BACK TO LOWER AUTHORITIES. T HE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE IN THE PRESENT CASE IS ABOUT TAXA BILITY OF THE SALARY EARNED BY THE ASSESSEE WHO IS STATED TO BE A NON RESIDENT INDIAN. BEFORE US, LD. A.R. SUBMITTED IN VIEW OF THE FACT THAT ASSESSEE BEING A NON RESIDENT AND DURING PREVIOUS YEAR 2011-2012, ASSESSEE HAD REMAINED IN I NDIA FOR ONLY 255 DAYS IN THE YEAR THE SALARY WAS NOT TAXABLE. ASSESSEE HA S ALSO FILED THE COPY OF THE PASS PORT TO DEMONSTRATE HIS STAY IN INDIA. WE FIND THAT THE DETAILS OF STAY IN INDIA AND THE COPY OF THE PASS PORT WERE NOT BEFORE A.O AND THERE IS NO FINDING WITH RESPECT TO THE RESIDENTIAL STATUS OF T HE ASSESSEE BY LD. CIT(A). IN VIEW OF THESE FACTS, WE ARE OF THE VIEW THAT THE MATTER NEEDS TO BE RE- EXAMINED IN THE LIGHT OF THE SUBMISSIONS MADE BY TH E ASSESSEE. WE THEREFORE RESTORE THE ISSUE BACK TO THE FILE OF A.O TO DECIDE THE ISSUE AFRESH. NEEDLESS TO STATE THAT A.O SHALL GRANT ADEQUATE OPP ORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FURNISH ALL THE REQUIRED DETAILS PROMPTLY TO THE A.O. THUS THE GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 05- 01 - 2016 . SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY