ITO, WARD- 1, PANIPAT V. KANAPARTHY ANANTHA KUMAR, KARNAL

ITA 6161/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2938 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 04-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K JIWANI
• Section: 143(3); 142(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 6161 /DEL/201 7 A.Y. : 20 1 3 - 1 4 INCOME TAX OFFICER, WARD - 1, PANIPAT KISHORE CINEMA, ABOVE UNION BANK OF INDIA, G.T. ROAD, PANIPAT VS. SH. KANAPARTHY ANANTHA KUMAR S/O SH. K JOHN, 303, RADHIKA RV RESIDENCY C/O BHAWANA NAGAR, ECIL POST HYDERABAD C/O M/S S.K. GOEL & CO., SCHOOL ROAD, THE MALL, KARNAL (PAN: AEOPA5584K) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : SH. V.K. JIWANI, SR. DR ASSESSEE BY : NONE ORDER ORDER ORDER ORDER THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), KARNAL DATED 01.8.2017 PERTAINING TO ASSESSMENT YEAR 2013-14 ON THE FOLLOW ING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), KARNAL HAS ERRED IN DELETING THE ADDITION O F RS. 39,88,390/- MADE BY THE AO ON ACCOUNT OF SALARY EA RNED OUTSIDE INDIA IN FOREIGN CURRENCY DURING HIS PERIOD OF STATUS OF NON RESIDENT. 2 2. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROU NDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OFF. 2. THE BRIEF FACTS OF THE CASE ARE THE ASSESSEE HAS FILED THE RETURN OF INCOME DECLARING NET INCOME OF RS. 1,28,500/- ON 02 .8.2014 CLAIMING REFUND OF RS. 10,42,090/-. SUBSEQUENTLY, THE CASE W AS SELECTED FOR SCRUTINY THROUGH CASS AND NOTICE UNDER SECTION 143( 2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT) WAS ISS UED ON 01.9.2005 AND CONFIRMATION OF THE NOTICE, THE ASSESSEES REPLY WA S RECEIVED ON 29.9.2015, WHEREIN COUNSEL OF THE ASSESSEE HAS CONF IRMED THE SERVICE ON 24.09.2015. REPLY OF THE ASSESSSEE IS REPRODUCED AT PAGE NO. 2 OF THE ASSESSMENT ORDER. ON RECEIPT OF THE REQUEST FROM T HE ASSESSEES COUNSEL, NOTICE UNDER SECTION 142(1) OF THE ACT WAS ISSUED O N 03.12.2015 AND THE CASE WAS FIXED FOR HEARING ON 21.12.2015. THE ASSE SSEE WAS ASKED TO EXPLAIN THE DIFFERENCE IN THE SALARY SHOWN IN THE R ETURN OF INCOME AND AS APPEARING IN 26AS APPEARING ON SYSTEM. THE ASSESSEE AGAIN ATTENDED ON 21.1.2016 AND FURNISHED THE REPLY. AFTER CONSIDERI NG THE REPLY AND DETAILS FURNISHED, THE AO OBSERVED THAT FORM NO. 16 AS WEL L AS IN 26AS TOTAL SALARY IS SHOWN AT RS. 40,95,766/- INCLUDING PERQUI SITES AMOUNTING TO RS. 1,07,826/- AND TAX DEDUCTED AT SOURCE ON SALARY AMO UNTING TO RS 10,39,360/-. AGAINST THIS, THE ASSESSEE HAS SHOWN TAXABLE SALARY OF RS. 1,07,826/- OUT OF TOTAL SALARY AS SHOWN BY THE ASS ESSEE AMOUNTING TO RS. 40,44,384/- AFTER CLAIMING EXEMPTION OF RS. 39, 36,558/- UNDER SECTION 115-A(B) CLAIMING NRI STATUS. AO OBSERVE D THAT THE EXEMPTION CLAIMED BY THE ASSESSEE AMOUNTING TO RS. 39,36,558/ - CANNOT BE ALLOWED 3 AND TREATED AS INCOME OF THE ASSESSEE AND ACCORDING LY MADE THE ADDITION OF RS. 39,36,558/- TO THE INCOME RETURNED BY THE AS SESSEE AND FINALLY ASSESSED THE INCOME OF THE ASSESSEE AT RS. 41,16,89 0/- VIDE ORDER DATED 21.01.2016 PASSED U/S. 143(3) OF THE I.T. ACT, 1961 . 3. AGAINST THE AFORESAID ASSESSMENT ORDER, THE ASSE SSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 01.8.2017 HAS ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITION IN DISPUTE. 4. AGGRIEVED WITH THE IMPUGNED ORDER, THE REVENUE I S IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, LD. DR RELIED UPON THE O RDER PASSED BY THE AO AND REITERATED THE CONTENTIONS RAISED BY THE RE VENUE IN THE GROUNDS OF APPEAL. 6. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INV OLVED IN THE PRESENT APPEAL, I AM OF THE VIEW THAT NO USEFUL PURPOSE WOU LD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, I AM DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 4 7. I HAVE HEARD LD. DR AND PERUSED THE RELEVANT RE CORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE REVENUE AUTHO RITIES. I FIND THAT LD. CIT(A) HAS DISCUSSED THE ISSUE IN DISPUTE ELABORAT ELY AT PAGE NO. 5 & 6 VIDE PARA NO. 3.2 & 3.3. FOR THE SAKE OF CONVENIE NCE, I AM REPRODUCING HEREWITH THE RELEVANT FINDINGS OF THE LD. CIT(A) AS UNDER:- 3.2 THE FACTS OF THE CASE MAKE IT AMPLY CLEAR THAT THE APPELLANT HAS BEEN OUTSIDE INDIA FOR 282 DAYS IN THE GIVEN YEAR AND HENCE, QUALIFIES AS A NON-RESIDENT AS PER THE PROVISIONS OF SECTION 6(1)(A) OF THE INCOME TAX ACT, 1961. AS PER THE TERMS AND CONDITIONS OF THE SPV THAT WAS ENTERED INTO BY M/S INDIAN OIL CORPORATION WITH INDOIL NETHERLAND B.V. I. NEITHERLAND WHEREIN THE APPELLANT WAS DEPUTED TO WORK, THE SALARY WAS PAID IN FOREIGN EXCHANGE OUTSIDE INDIA AND THE FOREIGN TAX LIABILITY WAS BORNE BY THE CARBOBO PROJECT. 3.3. IN MY OPINION, FOR THE INCOME EARNED OUTSIDE INDIA, HE WAS NOT EXIGIBLE TO TAX IN INDIA. I, THEREFORE, DELETE THE SAID ADDITION. 8. AFTER PERUSING THE AFORESAID FINDING, I AM OF THE CONSIDERED VIEW THAT THERE IS NO INFIRMITY IN THE FINDING OF THE LD . CIT(A) AND THEREFORE, 5 THE SAME DOES NOT NEED ANY INTERFERENCE ON MY PART, HENCE, I UPHOLD THE SAME AND REJECT THE GROUND RAISED BY THE REVENUE. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED ON 13/03/2018. S SS SD DD D/ // /- -- - [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DAT:- 13/03/2018 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES