ITO (IT) - 3(1)(1), MUMBAI V. DEEPANKAR K. KHIWANI, MUMBAI

ITA 6991/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3717 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2015-2016
• Appeal Filed On: 06-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARSHAD VENGURLEKAR
• Keywords: Double taxation relief; Tax effect; Revised return; Set aside
• Section: 139(5); 201; 139(4)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I , MUMBAI BEFORE SHRI C.N. PRASAD , HONBLE JUDICIAL MEMBER AND SHRI G. MANJUNATHA , HONBLE ACCOUNTANT MEMBER ITA NO . 69 91 /MUM/201 8 ( A.Y: 201 5 - 16) INCOME TAX OFFICER ( I . T) 3 ( 1 )(1) ROOM NO. 16 28 AIR INDIA BUILDING NARIMAN POINT, MUMBAI 400 021 V. DEEPANKAR K. KHIWANI 707 - 708, EVEREST HEIGHTS LAKE HOMES, POWAI MUMBAI 400 076 PAN: AEYPK4754M (APPELLANT) (RESPONDENT) C.O. NO. 263/MUM/2019 [ARISING OUT OF ITA NO . 6991/MUM/2018 ( A.Y: 2015 - 16)] DEEPANKAR K. KHIWANI 707 - 708, EVEREST HEIGHTS LAKE HOMES, POWAI MUMBAI 400 076 PAN: AEYPK4754M V. INCOME TAX OFFICER ( I.T) 3 ( 1 )(1) ROOM NO. 1628 AIR INDIA BUILDING NARIMAN POINT, MUMBAI 400 021 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRANAY GANDHI DEPARTMENT BY : SHRI HARSHAD VENGURLEKAR DATE OF HEARING : 26 .11.2019 DATE OF PRONOUNCEMENT : 2 6 .11.2019 2 ITA NO. 6991/MUM/2018 (A.Y: 2015 - 16) & C.O. NO. 263/MUM/2019 DEEPANKAR K. KHIWANI O R D E R PER C.N. PRASAD (JM) THIS APPEAL AND CROSS OBJECTION ARE FILED BY THE R EVENUE AND ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 57 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 02 .09.2018 FOR THE ASSESSMENT YEAR 201 5 - 16. 2. THE REVENUE IN ITS APPEAL HAS RAISED THE FOLLOWING GROUNDS : - ' 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DIRECTING THE A.O TO GIVE EXEMPTION (BENEFIT OF) ARTICLE 16(1) OF THE INDIA - FRANCE DTAA DESPITE UPHOLDING THAT REVISED RETURN U/S 139(5) IS NOT VALID RETURN AS THE ORIGINAL RETURN WAS FILED U/S 139(4) OF THE I.T ACT' ' 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS GROSSLY ERRED BY PASSING A NON - SPEAKING ORDER AND BY NOT CORRECTLY APPRECIATING THE FACTS OF THE CASE.' ' 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS GROSSLY ERRED BY NOT BRINGING ON RECORD WHETHER THE TAXES PAID IN FRANCE ARE IN ADDITION & SEPARATE FROM THE TAXES PAID IN INDIA OR THE CREDIT OF TAXES PAID IN INDIA HAS BEEN CLAI MED IN THE TAX RETURN FILED IN FRANCE. ' 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS GROSSLY ERRED IN DIRECTING THE A.O TO GIVE BENEFIT OF ARTICLE 16(1) OF THE DTAA TO THE ASSESSEE WITHOUT BRINGING ON RECORD THAT IF THE CREDIT OF TAX ES PAID IN INDIA HAS BEEN CLAIMED IN THE FRENCH TAX RETURN & ASSESSEE IS GRANTED REFUND OF TAXES PAID IN INDIA - THEN IT WILL BE CASE OF DOUBLE NON - TAXATION, WHICH IS NOT AS PER THE SPIRIT OF THE DTAA. ' 5. THE APPELLANT PRAYS THAT THE ORDER OF THE LD.CIT(A) ON THE ABOVE GROUND(S) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED.' ' 6. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY.' 3. AT THE TIME OF HEARING, LD. DR FAIRLY SUBMITTED THAT TAX EFFECT ON THE ISSUE S IN THE PRESENT APPEAL IS BELOW . 5 0 LAC S AND IN VIEW OF THE CBDT 3 ITA NO. 6991/MUM/2018 (A.Y: 2015 - 16) & C.O. NO. 263/MUM/2019 DEEPANKAR K. KHIWANI CIRCULAR N O . 17/2019 DATED 08.08.2019 IN F.NO.279/MISC.142/2007 - ITJ (PT) , THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. 4. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE GROUNDS OF APPEAL IN THIS APPEAL. WE FIND THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN .5 0 LAKHS AND T HEREFORE THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO. 17/2019 DATED 08.08.2019. HENCE TH IS APPEAL IS DISMISSED. 5. COMING TO CROSS OBJECTION FILED BY THE ASSESSEE IT IS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT AS THE REVENUES APPEAL IS DISMISSED THE CROSS OBJECTION FILED BY THE ASSESSEE MAY BE TREATED AS INFRUCTUO US. IN VIEW OF THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THE CROSS OBJECTION FILED BY THE ASSESSEE IS TREATED AS INFRUCTUOUS AND DISMISSED ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE R EVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 26 TH NOVEMBER , 2019 . SD/ - SD/ - (G. MANJUNATHA ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 26 / 11/2019 GIRIDHAR, SR.PS 4 ITA NO. 6991/MUM/2018 (A.Y: 2015 - 16) & C.O. NO. 263/MUM/2019 DEEPANKAR K. KHIWANI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM