PETROLEUM INDIA INTERNATIONAL, MUMBAI V. ADDL CIT RG 19(3), MUMBAI

ITA 6352/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6797 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 27-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Double taxation relief; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI BEFORE SHRI G S PANNU, ACCOUNTANT MEMBER & SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO.6352/MUM/2016 ASSESSMENT YEAR : 2011-12 PETROLEUM INDIA INTERNATIONAL, O/O MGB & CO. LLP PENINSULA BUSINESS PARK, B 19 TH FLOOR, LOWER PAREL, MUMBAI - 400 013 PAN AAAAP0017B VS. ADDL. CIT RANGE 19(3), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JAY BHANSALI RESPONDENT BY : SHRI SAURABHKUMAR RAI DATE OF HEARING : 22.05.2018 DATE OF PRONOUNCEMEN T : 22.05.2018 O R D E R PER G S PANNU, ACCOUNTANT MEMBER THIS APPEAL IS DIRECTED AGAINST THE ORDER OF THE C IT(A)-33, MUMBAI, DATED 15.06.2016, WHICH IN TURN HAS ARISEN OUT OF THE ORD ER PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) RELATING TO A.Y. 2011-12. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED FOLLOWIN G GROUNDS: 1. THE LD. CIT(A) ERRED IN NOT ADJUDICATING THE A PPELLANTS ADDITIONAL GROUND FILED AGAINST THE ORDER OF ASSESS ING OFFICER FOR NOT HAVING ALLOWED DOUBLE TAX RELIEF OF RS 6,59,183/- I N RESPECT OF TAX PAID ON ITS INCOME EARNED IN KUWAIT UNDER SECTION 90/91(1) OF THE INCOME TAX ACT WHILE PASSING THE ASSESSMENT ORDER. 2. HE FAILED TO APPRECIATE THAT: I. THE APPELLANT FULFILLED ALL THE CONDITIONS OF SECTI ON 90/91(1) AND THUS WAS ELIGIBLE FOR THE SAID SECTION. ITA NO.6352/MUM/2016 PETROLEUM INDIA INTERNATIONAL 2 II. ON IDENTICAL FACTS, FOR ALL THE EARLIER YEARS BEGIN NING WITH A.Y. 1996-97, THE INCOME-TAX APPELLATE TRIBUNAL AND HON BLE BOMBAY HIGH COURT HAD RULED ON THE SAME ISSUE IN FAVOUR OF THE APPELLANT U/S. 91(1) OF THE ACT. 3. THE APPELLANT PRAYS THAT THE RELIEF U/S. 90/91(1 ) OF THE ACT BE ALLOWED AS NOT GRANTING OF SAME BY LD. CIT(A) IS ER RONEOUS, CAUSING INJUSTICE CONTRARY TO THE DECISION OF HONBLE BOMBA Y HIGH COURT. 3. AS THE GROUNDS OF APPEAL REVEAL, THE GRIEVANCE O F THE ASSESSEE IS AGAINST THE DENIAL OF CLAIM OF DOUBLE TAX RELIEF BASED ON THE P ROVISIONS OF SECTION 90/91(1) OF THE ACT. AS PER THE ASSESSEE, IT FULFILS REQUISITE CONDITIONS NAMELY, THAT IT WAS RESIDENT IN INDIA DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION; THAT THE INCOME HAS ACCRUED TO IT IN KUWAIT DURING THE INSTANT YEAR; AND, THAT INDIA AND KUWAIT DID NOT HAVE AGREEMENT F OR THE RELIEF OR AVOIDANCE OF DOUBLE TAXATION EXCEPT FOR INCOME DERIVED FROM INTE RNATIONAL AIR TRANSPORT. 3. BEFORE US, LEARNED REPRESENTATIVE POINTED OUT TH AT THE ASSESSEE HAS RAISED THE ISSUE BEFORE HE ASSESSING OFFICER AND AS WELL A S THE CIT(A) BY WAY OF ADDITIONAL GROUND BUT BOTH THE AUTHORITIES HAVE NOT GIVEN ANY FINDING WITH REGARD TO THE CLAIM OF THE ASSESSEE. THE LEARNED REPRESENTATIVE ALSO R EITERATED THAT FOR ALL THE EARLIER YEARS BEGINNING A.Y. 1996-97, THE ITAT AS WELL AS H ONBLE BOMBAY HIGH COURT HAS RULED THE ISSUED IN FAVOUR OF THE ASSESSEE FOR RELI EF U/S. 90/91(1) OF THE ACT. SUPPORTING THE PLEA THAT THE CLAIM WAS RAISED BEFOR E THE ASSESSING OFFICER, LEARNED REPRESENTATIVE REFERRED TO PAGE 8 OF THE PAPER-BOOK WHEREIN IS PLACED COPY OF A COMMUNICATION DATED 16.12.2013 DULY ACKNOWLEDGED, W HICH CONTAINS ASSESSEES CLAIM FOR RELIEF U/S. 91(1) OF THE ACT. AT PAGE 10 AND 11 OF THE PAPER BOOK IS PLACED A COMMUNICATION DATED 08.08.2014, DULY ACKNOWLEDGED ON 12.08.2014 BY THE CIT(A), WHICH IS COPY OF ADDITIONAL GROUND OF APPEA L RAISED BY THE ASSESSEE FOR RELIEF U/S. 90/91 OF THE ACT. ON THIS BASIS IT IS SOUGHT TO BE POINTED OUT THAT THOUGH POINT WAS RAISED, IT HAD ESCAPED DETERMINATION BY B OTH THE AUTHORITIES BELOW. 4. THE LEARNED DR HAS NO OBJECTION TO THE PLEA OF T HE ASSESSEE FOR REMANDING THE MATTER BACK TO THE ASSESSING OFFICER FOR PROPER DECISION ON MERITS. ITA NO.6352/MUM/2016 PETROLEUM INDIA INTERNATIONAL 3 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND FACT UAL MATRIX, WE DEEM IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE O F THE ASSESSING OFFICER, WHO SHALL CONSIDER THE CLAIM OF THE ASSESSEE FOR RELIEF U/S. 91(1) OF THE ACT AS PER LAW. NEEDLESS TO MENTION, THE ASSESSING OFFICER, IN THE ENSUING PROCEEDINGS, SHALL ALLOW REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND THEREAFTER PASS ORDER GRANTING RELIEF U/S. 91(1) OF THE ACT IN ACCORDANCE WITH LAW. 6. THUS, FOR STATISTICAL PURPOSES THE APPEAL IS TRE ATED AS ALLOWED. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF HEARING IN THE PRESENCE OF BOTH THE PARTIES TODAY I .E. 22 ND MAY, 2018. SD/- SD/- (SANDEEP GOSAIN) (G S PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED :22 ND MAY, 2018. SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T , MUMBAI. 5. THE DR, I BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI