Mahindra Dogiyal, Geneva V. DCIT, Int. Tax., Jaipur

ITITA 9/JPR/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2888 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 07-09-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 31-08-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 23-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RITUL PATWA
• Keywords: Residential status; Salary income; Double taxation relief; Principle of natural justice; Bonafide belief; Period of limitation; Time period of passing order; Condonation of delay; TDS; Set aside
• Section: 6; 271(1)(c); 90; 143(3); 5(2); 143(1); 250; 143(2); 43; 48; 22

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@IT(IT) A. 09/JP/2022 fu/kZkj.k o"kZ@Assessment Years : 2014-15 Shri Mahindra Dogiyal 94/A, Malviya Nagar, Golf Course Scheme, Jodhpur cuke Vs. DCIT, INT. Tax, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AMXPK 3674 M vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Ritul Patwa (CA) jktLo dh vksj ls@ Revenue by : Smt. Runi Pal (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 01/09/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 08/09/2022 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal is filed by the assessee aggrieved from the order of the Commissioner of Income Tax (Appeals)-42, New Delhi [ Here in after referred as Ld. CIT(A) ] for the assessment year 2014-15 dated 21.11.2017 which in turn arises from the order passed by the DCIT, International Taxation, Jaipur passed under Section 143(3) of the Income tax Act, 1961 (in short 'the Act') dated 07.10.2016. 2 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur 2. The assessee has marched this appeal on the following grounds of appeals:- “1. Ground No 1 - The impugned Order u/s 250 passed by the Ld. CIT(A)-42, New Delhi in case of Appeal No: 155/2016-17/CIT(A)-42 dated 21.11.2017, 'is bad in law, as well as on the facts of the Case' and hence the same is liable to be quashed and the case be decided in favour of the assessee. 2. Ground No 2-The Ld. CIT(A) has erred in disallowing treaty benefits to the Assessee by disallowing relief claimed as per India US DTAA u/s 90 of the Act in spite of providing all specified documents under section 90(4) of the Act r.w. rule 21AB, thereby disregarding the fact that treaty provisions override Income Tax Act and hence the impugned order may kindly be quashed. 3. Ground No 3- The Ld. AO has erred to tax the assessee and the Ld. CIT(A) has erred in upholding the order of the Ld. AO, in charging the salary income earned by the Non-Resident Assessee outside India, as taxable in India and disallowing relief claimed as per India US DTAA u/s 90 of the Act, hence the impugned order may kindly be quashed. 4. Ground No 4-The Appellant craves leave to add, amend, alter and /or withdraw any or all the above grounds of Appeal. 5. Ground No 5 - That the aforesaid grounds of appeal are without prejudice to each other.” 3. The assessee has raised one additional ground in this appeal during the pendency of this appeal and the same is extracted here in below: “1. The assessee is a Non Resident Indian (NRI) u/s 6 of the Income Tax Act, 1961 during the F. Y. 2013-14 (AY 2014-15) and therefore by virtue of Section 5(2) of the act, his Income that accrue or arise outside india (i.e. in USA) is not Taxable in India.” 4. Before we proceed to decide this appeal on merits for the year under consideration the registry pointed out that the appeal of the assessee is delayed and is accompanied a petition for condonation of delay in filling an appeal along with the affidavit of the assessee stating the reasons of delay on an affidavit. 3 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur 4.1 In the petition filed along with the affidavit the assessee for condonation of delay the assessee contended as under : “The humble Assessee most respectfully submits as under: A. That the Assessee is filing the accompanying appeal against the impugned order u/s 250 dated 21.11.2017 passed by the Ld. CIT(A)-42, New Delhi in case of Appeal No: 155/2016-17/CIT(A) The facts and grounds of appeal may be taken part of application. B. That the Assessee prays that delay of total 1550 days [including 716 days (From 15-03-2020 28-02-2022) excluded from the Limitation Period by the Hon'ble Supreme Court of India to COVID19 pandemic vide its order in Misc Application No. 21 of 2022 in Suo Motto Writ Petition No. 3 of 2020 dated January 10, 2022. Copy of order Attached as Annexure - A] in the appeal may please be condoned, in the interest of justice on the following grounds: 1. That the appellant has submitted the above titled appeal and is sure of success in it; 2. That the facts and grounds as mentioned the Appeal, clearly shows that the Assessee has bonafide case which can also be further seen from the fact that the order of the Ld. CIT(A) was passed against the Assessee only on statistical grounds and not on merits. 3. That Order-In-Original of the CIT (Appeals) in the Appeal No. 155/2016-17 (AY 2014-15) dated 21-11-2017 has been received by at the Indian address of the assessee at 94/A Malviya Nagar, Golf Course Scheme Jodhpur 342011 on 27-11-2017; 4. That the assessee is a Non Resident Indian (NRI) and during the period when this order has been received at his indian address, he was living in USA and only his mother Mrs. Sharda Choudhary who is 65 years of age and illiterate (uneducated), was staying at that address. However, due to her old age and lack of understanding of the Tax Laws, she could not understand what she has received and communicate to me that an Order has been passed against me and during the entire time was under an Impression that my case still pending before the CIT (Appeals); 5. 5. That the Assessee came to know about the CIT (Appeals) order only in January, 2021; 6. That there are sufficient and good cause for condoning the delay, occasioned due to aforesaid bonafide reasons beyond control of the Assessee. Hence the application deserves success, in the interest of justice, equity and fair play, as it is well settled that the procedural law should not be resorted to defeat rights of the parties to get their appeal/case considered/decided on merits. 7. ASSESSEE IS A NON-RESIDENT AND HENCE WAS NOT WELL VERSED WITH THE COMPLEX INDIAN TAX LAWS 4 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur 7.1. That Assessee is a software engineer. During September 2013 he has permanently shifted to USA for the purpose of his employment and thereafter permanently stayed outside India as NRI. 7.2. That the Assessee has been a Non-resident in India since AY 2014-15 till current date and thus is a layman, who is not aware of the complexities of Indian tax laws and the legal recourse to be taken by him against the Order of CIT (Appeals). 8. ASSESSEE HAD NO KNOWLEDGE AND/OR GUIDANCE OF THE PROCEDURES OF FILING APPEAL BEFORE THE HON'BLE ITAT AGAINST THE ORDER OF THE Ld. CIT(A) AND HENCE THE APPEAL COULD NOT BE FILLED BEFORE THE ITAT WITHIN THE PRESCRIBED TIME 8.1. That the Assessee being a Non-resident residing outside India did not understand the nature 81 and implications of the proceedings against him and was unaware about his legal remedies against the action taken by the Department. 8.2. That the Assessee being a non-resident residing outside India since 2013, could not get timely and required professional consultation as he had no legal counsel in India. Infact this can be seen from the fact that even the Appeal before the Ld. CIT(A) was filed belated with a delay. 8.3. That Assessee by himself had tried to comply with the Indian laws to his maximum abilities and when he could not do that, the best he could do in this regard was to appoint an expert to deal with the matter, which he had also done. 8.4. That he had appointed a consultant in India to represent him during the proceedings before the Ld. CIT(A). The Assessee had provided all required information and details to the consultant from time to time as requested by him and hence he was under the bonafide belief that the legal counsel will handle the matter and do the needful. 8.5. That thereafter, there was no communication or action from the Department or from the consultant on the matter and hence he was under the bonafide belief that the matter has been resolved and the assessee assumed that the matter has reached a closure. 8.6. That it later came to the knowledge of the Assessee that all the documents sought by the CIT(A), were not submitted with the Authorities during the first appellate proceedings by the consultant. He had also tried to communicate with the consultant but could not reach him. 8.7. That in fact, the Assessee became aware of the unfavourable order passed by the Ld, CIT(A) only in January 2021. 8.8. That the Assessee being a layman Non-resident, did not have any knowledge of the complex Indian Tax laws and hence in order to show his utmost willingness to co-operate with the proceedings against him, the Assessee on the basis of his limited knowledge filed a reply letter before the Ld. DCIT (Int. Tax.), Jaipur on 31.01.2021 along with the required proof of payment of tax in US, instead of filing Appeal before the Hon'ble ITAT in response to the order of the Ld. CIT(A). 8.9. The Assessee was under a bonafide belief, that since the only issue raised in the Order of CIT(A) is related to non-submission of the proof of payment of Tax 5 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur in US, his liability is discharged after his submission of such evidence before the Ld. DCIT (Int. Tax.), Jaipur vide his letter dated 31.01.2021 copy enclosed as Annexure - B; 8.10. However, since he had not received any communication from the department in this regard, and the Assessee being diligent and responsible had suo moto filed an online grievance dated 29.06.2021 on the ITBA portal requesting the Ld. Authorities to accept the documents and waive off the penalty showing his utmost and bonafide intentions towards the matter. The copy of the Online Grievance is attached as Annexure-C 8.11. That the Assessee was issued letter for initiation of recovery proceedings u/s 221(1) of the Act dated 28.12.2021 received by his relatives in India in January 2022, after which the Assessee immediately tried to find another tax consultant, who could guide properly guide him in this matter and get the demand deleted. 8.12 That the Assessee is a non-resident residing outside India since 2013 and hence did not have any appropriate connections with any tax or legal consultants in India. Even at present, the Assessee is based in Switzerland, and he faced a lot of difficulty in searching for a proficient consultant in India, who could represent his case and then discussing the case getting their professional opinions. Hence, it took some further reasonable time in this process to search, discuss and appoint a new legal counsel to represent his case before the Indian Income Tax authorities; 8.13. It was advised by the new consultant based in Jaipur that the assessee appeal before the Tribunal against the order of the Ld. CIT(A) before CIT(A) against the penalty order u/s 271(1)(c) passed by the Ld. AO for relief but the said appeals have already become barred by time limitation. 8.14. The Assessee was advised that he has a good case and that the adverse order was passed by the Ld. CIT(A) only on statistical grounds due to absence of one document which is also available with the Assessee and hence can be submitted before the Hon'ble Tribunal. He has all along cooperated with the Revenue authorities and has submitted all the required documents. 9. ASSESSEE IS AN NRI WITH A STRONG CASE OF SUCCESS & SEEKS JUSTICE IN INDIA 9.1 That the assessee has all the evidences, which prove his residential status, payment of tax in US and correctness of the claim of relief by him in the Income Tax Return and his earlier appeal before the CIT(A) has been rejected only on the Statistical Grounds for non submission of the documents by his earlier consultant and his lack of knowledge of the Indian laws; 9.1 That the assessee is a law-abiding person and has all along cooperated with the Revenue authorities and has submitted all the requisite information and documents that were sought in his knowledge and delay in submission is merely due to his non-presence in india being NRI, lack of knowledge of the Indian Laws, disruption due to COVID19 and lack of proper advise & guidance from the consultant; 9.3 That there are genuine grounds of appeal to the impugned judgment/order of the Ld. Commissioner (Appeals) and if the delay is not condoned, and the 6 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur appeal is not heard on merits, the applicant would be put to suffer irreparable loss, which could not be compensated with other relief; 9.4 That on the contrary, if the delay is condoned, at least the matter shall be decided on merits and that in no case would be prejudicial to the interest of the revenue which stands for justice; 9.5 That there are sufficient and good cause for allowing the appeal of the assessee and condoning the delay, occasioned due to aforesaid bonafide reasons beyond control of the applicant. Hence the application seeks success, in the interest of justice, equity and fair play, as it is well settled that the procedural law should not be resorted to defeat rights of the parties to get their appeal/case considered/decided on merits; 10. REQUEST FOR CONDONATION OF DELAY 10.1. That u/s 253(5) of the Income Tax Act, 1961, the Hon'ble ITAT may admit an appeal filed beyond the period of limitation, where it is satisfied that there was sufficient cause for not presenting the appeal within the prescribed time 10.2. That condonation of delay of the present appeal will be in the interest of Justice as there is no non-compliance on behalf of the Non-resident Assessee in this case and all the documents are available and submitted before the Authorities at lower levels. This is only a procedural lapse on the part of Assessee as he is a Non-resident residing outside India since 2013 and does not have complete knowledge of complex Indian Tax laws and thus it can be seen that the delay occurred in filing the appeal is completely unintentional and due to bonafide reasons. There was no deliberate delay on the part of Assessee and that there was sufficient cause beyond the control of the assessee, prevented him from filing the appeals in time before the Hon'ble Tribunal. 10.3. Your Honor may kindly consider the fact that by not filing the present appeals or by a delayed filing thereof, the assessee is not going to gain anything. The conduct of the assessee is not, contumacious or dishonest. It has already placed all the required documents on record with the CIT(A) and only due to lack of knowledge of Indian Tax Laws could not submit the same thru proper procedure. There was no deliberate intention on his part to delay the filing of the present appeals. 11. In this regard, reliance placed on the various Judgements passed by the Hon'ble Supreme Court India, High Courts and ITAT's wherein favourable view has been taken consistently in such matters: 11.1. Collector, Land Acquisition vs MST Katiji (1987) 167 ITR 471 (SC), the Hon'ble Supreme Court has held that the expression 'Sufficient Cause' employed by the legislature is adequately elastic enable the Courts to apply the law in a meaningful manner to sub-serves the ends of justice that being the life purpose of the existence of the institution of Courts. It was further held by the Hon'ble Supreme Court that such liberal approach is adopted on one of the principles that refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen that cause would be decided on merits 7 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur after hearing the parties. Another principle laid down by the Hon'ble Supreme Court is that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to preferred for the other side cannot claim to have vested right in injustice being done because of deliberate delay. It was also held by the Hon'ble Supreme Court that there is presumption that delay occasioned deliberately, or on account of culpable negligence, or account male fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk. the instant case, applying the same principles, we find that the assessee has along acted diligently in safeguarding his legal rights and availing the remedies available to and has acted and taken action basis the advice and assistance sought from his legal Counsels. 11.2. Hon'ble Gujarat High Court case of Mukesh Jesangbhai Patel vs. ITO (2013) 29 taxman 389 wherein the Hon'ble High Court has condoned the delay of over 800 days in filing the appeal. In that case, the Hon'ble High Court has drawn reference to the decision of Hon'ble Supreme Court case of Balakrishna vs. M. Krishnamuthy [1998] 7 SCC 123 wherein was held under:- "6. In N. Balakrishna (supra), was reiterated that the word 'sufficient cause' should receive liberal construction and acceptability of the explanation is the criteria, and not length of delay as such by observing as under: "In every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. If the explanation does not smack of mala fides or it not put forth as part of dilatory strategy the court must show utmost consideration to the suitor." 11.3. The Hon'ble Bombay High Court in case of Vijay Vishin Meghani vs. DCIT (2017) 398 ITR 250 (Bom) wherein it has referred to the decision in case of Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors. AIR 1979 SC 1666 wherein the Hon'ble Supreme Court has held that a legal advice tendered by a professional and the litigant acting upon it one way or the other could be a sufficient cause to seek condonation of delay and coupled with the other circumstances and factors for applying liberal principles and then said delay can be condoned. Eventually, an overall view in the larger interest of justice has to be taken. None should be deprived of an adjudication on merits unless the Court of law or the Tribunal/Appellate finds that the litigant has deliberately and intentionally delayed filing of the appeal, that he is careless, negligent and his conduct is lacking in bona fides. The Hon'ble High Court thereby condoned the delay of 2984 days in filing the appeals holding that the explanation placed on affidavit was not contested nor we find that from such explanation, can we arrived at the conclusion the assessee was at fault, he intentionally and deliberately delayed the matter and has no bona fide or reasonable explanation for the delay in filing the proceedings and the position is quite otherwise. 11.4. Co-ordinate Jaipur Bench decision in case of Ganesh Chawala vs. ITO (2008) 9 DTR Trib (Jp) (Trib) wherein the Coordinate Bench has condoned the delay of about 43 months in filing the appeal wherein under similar circumstances, the assessee ran a risk of prosecution. The Hon'ble bench also observed that no presumption can be made that the delay has been occasioned deliberately or on account of culpable negligence or on account of mala fides. 8 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur The litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. The assessee has explained the delay of filing the appeal before the tribunal and hence relying on the decision of Hon'ble Supreme Court of India in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. (1987) 62 CTR (Syn) (SC) 23: (1987) 167 ITR 471 (SC) condoned the delay." In view of the above facts and circumstances, it is most humbled prayed that the delay of total 1550 days [including 716 days (From 15-03-2020 to 28-02-2022) excluded from the Limitation Period by the Hon'ble Supreme Court of India due to COVID19 pandemic vide its order in Misc Application No. 21 of 2022 in Suo Motto Writ Petition No. 3 of 2020 dated January 10, 2022. Copy of order Attached as Annexure - AJ, in filing the present appeal may please be condoned and the appeal may please be decided on merits, in the interest of justice, equity and fair play. Any other relief which the Hon'ble ITAT for which the Appellant is entitled may be awarded.” 4.2 The ld. AR appearing on the behalf of the assessee in all fairness accepted that the appeal of the assessee is delayed by 1550 days [ including 716 days delay covered on account of covid 19 relaxations]. He submitted before the bench that the delay is on account of the detailed facts submitted in the petition filed for condonation of delay and based on the detailed arguments prayed for condonation of delay in bringing this appeal may please be condoned based on the stated facts therein. 4.3 On the other hand the ld. DR objected to the petition and stated that the assessee being an educated person having the consultant for attending all the matters and this being the important affairs of tax obligations the plea taken by the assessee is not maintainable and may be rejected. 9 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur 4.4 We have heard the rival contentions and also gone through the submissions made by both the parties. Taking into consideration and facts of the case, we rely on the decision of Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. MST Katiji (1987) 167 ITR 471 (SC), the Hon’ble Supreme Court has held as under:- “11.1. Collector, Land Acquisition vs MST Katiji (1987) 167 ITR 471 (SC), the Hon'ble Supreme Court has held that the expression 'Sufficient Cause' employed by the legislature is adequately elastic enable the Courts to apply the law in a meaningful manner to sub-serves the ends of justice that being the life purpose of the existence of the institution of Courts. It was further held by the Hon'ble Supreme Court that such liberal approach is adopted on one of the principles that refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen that cause would be decided on merits after hearing the parties. Another principle laid down by the Hon'ble Supreme Court is that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to preferred for the other side cannot claim to have vested right in injustice being done because of deliberate delay. It was also held by the Hon'ble Supreme Court that there is presumption that delay occasioned deliberately, or on account of culpable negligence, or account male fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk. the instant case, applying the same principles, we find that the assessee has along acted diligently in safeguarding his legal rights and availing the remedies available to and has acted and taken action basis the advice and assistance sought from his legal Counsels.” 4.5 We found from the facts of the petition that the contentions raised in the petition was not malafide and the circumstances stated in the petition is not controverted by the revenue. In view of the above set of facts, circumstances of the assessee presented in the petition and on being consistent with the findings of the Hon’ble Supreme Court (supra), the 10 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur delay in the case of the assessee in filling this appeal is condoned and appeal is decided on merits. 5. The fact as culled out from the records is that the assessee filed original return of income for assessment year 2014-15 on 28.07.2014 declaring total income of Rs. 10,88,239/-. The return of income was processed u/s 143(1) and was picked up under CASS scrutiny by issuing notice u/s 143(2) of the I. T. Act, 1961 on 31.08.2015 by ITO, Ward-2(2), Jodhpur. In response to the statutory notices, Shri Dara Ram Choudhary, A/R of the assessee attended on 15.09.2015 and submitted the POA and U.S. Individual Income Tax Return filed by the assessee. The case was received on transfer from ITO, Ward 2(1), Jodhpur as the assessee was a Non Resident Indian and owing to change of incumbency notice u/s 142(1) along with detailed questionnaire was issued to the assessee on change of incumbency on 28.10.2015. During the year the assessee was a Non Resident Indian and declared income from Salaries during the financial year 2013 14. 6. During assessment proceedings, on perusal of computation of total income it is noticed that the assessee has shown Gross Total Income from 11 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur salaries of Rs. 12,18,052/-, claiming deduction under Chapter VI A of Rs. 1,29,813/- resulting in Total income of Rs. 10,88,239/- on which TDS of Rs. 1,83,056/- was deducted and the assessee had claimed the same as refund. The assessee has also claimed relief u/s 90/90A of Rs. 3,34,140/-. After providing ample opportunities to the assessee vide this office notices dated 28.10.2015, 31.05.2016 and 16.08.2016 asking assessee to file justification of claiming relief u/s 90/90A alongwith the Tax residence certificate which is primary ingredient for claiming relief u/s 90 of the Act. But the assessee did not comply with the notices issued by the assessee. Thus in order to complete the case a final show cause notice dated 06.09.2016 asking assessee to show cause as to why the relief u/s 90 may not be withdrawn as the assessee has failed to file his justification for claiming the relief u/s 90 of the Act. But again nothing has been submitted by the assessee. Although the assessee was provided an opportunity to send his reply via e-mails, replying to which the assessee was unable to respond at all times, providing a reason or the other. Hence, the relief claimed by the assessee is not accepted in absence of proper evidences and justification of relief u/s 90 of the Act and the same is hereby withdrawn. 12 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur 7. The ld. AO further observed that alternatively, on perusal schedule FSI of the return of income filed it revealed that assessee earned gross income of Rs. 22,61,100/- including income earned inside India i.e. Rs. 12,18,052/ and the assessee while filing return of income shown gross income of Rs. 12,18,052/-. The assessee further claiming the relief u/s 90/90A of Rs. 3,34,140/- for the income on which the assessee paid taxes out of India. Now here it is pertinent to mention here that the assessee had not declared income earned outside India in the return filed and also claimed relief u/s 90/90A of the Act. The assessee has claimed dual benefits by claiming the relief u/s 90/90A on the income which is not disclosed in the return. Since, the assessee claimed the relief u/s 90/90A of the Act, in such a case the difference of Income of Rs. 10,42,948/- [Rs. 2261100/--1218052/-] is added back to the income of the assessee. The ld. AO further stated that as regards to the matter arises that whether relief is allowable to the assessee. On that ld. AO stated that the assessee failed to file sufficient documents evidencing the relief u/s 90/90A of the Act. Thus the relief claimed is not found tenable and same is hereby disallowed. 8. Aggrieved from the above order of the assessing officer the assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the 13 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur appeal of the assessee and the relevant findings of the ld. CIT(A) is as under : 5.5 It is noticed based on computation of income submitted by the assessee that the assessee has offered complete salary of Rs.22,61,000/- for taxation in India. After claiming deduction under chapter VIA, the total income comes to Rs.21,30,170/-. The assessee has claimed foreign tax credit of Rs.3,34,140/- under section 90/90A. Schedule FSI of ITR-2 filed by the assessee also claims relief of Rs.3,34,140/- under section 90/90A. In support of the same, the assessee has produced the copy of the tax residency certificate of US. However, the assessee has not produced any evidence towards payment of tax of Rs. 3,34,140/-. In the absence of any such evidence, the relief claimed under section 90/90A of tax of Rs.3,34,140/- cannot be allowed.” 9. Feeling resentment at having been not finding favour from the ld. CIT(A) the assessee has preferred the appeal before us on the grounds raised and extracted here in above. In this appeal the ld. AR of the assessee submitted a detailed written submission and the same is extracted here in below : I) BRIEF OF THE ISSUE a. That the Appellant was a Non-Resident under IT Act, 1961 during the F. Y. 2013- 14, having Salary Income from India and from USA; b. That as per Section 5(2) read with Section 6(1) of IT Act, 1961 and Article 16 of DTAA, his income from salary in USA was not taxable in india for FY 2013-14; c. That he filled his Income Tax Return showing his Income from India but due to lack of knowledge has claimed the Relief u/s 90/ 90A on taxes paid in USA; d. That an order has been passed by the Ld. A.O. in which instead of only disallowing the Relief u/s 90/ 90A, his Global Income including Salary earned in USA has been Taxed in India and also concurrently the Relief u/s 90/ 90A for the Taxes paid outside India have also been disallowed due to non-submission of the TRC - which despite his best efforts the appellant could not obtain from foreign govt before passing of order; e. That the Ld. A.O. in his order has accepted the appellant as a Non Resident, but 14 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur not applied the provisions of Section 5(2) applicable on Non Residents wherein their Salary Income that accrue or arise outside india is not taxable in India; f. That the Appellant filled an appeal before CIT(A), wherein he submitted the TRC of USA for 2013 and 2014 which he has received by then, along with a revised computation by adding his total global income, so that at least he could get the benefit of Relief u/s 90/ 90A of the taxes paid in USA; g. That the CIT(A) accepted the TRC but upheld the addition made by the Ld. A.O. for non-submission of the evidence of payment of tax. Whereas the Appellant has already submitted the copy of US Tax Returns (IRS) filed for the calendar year 2013 and 2014, and this has also been mentioned in the Order-In-Original passed by the Adjudicating Authority [Refer PB Page 48]; h. That the Assessee is a Non Resident, for which evidences have been placed on Record and the same is also accepted by the Ld. A.O. and his Income from Salary that accrue and arise in USA for the FY 2013-14 is not taxable in India as per Section 5(2) and also under the Article 16 of the DTAA between India and USA and the Appellant has all the evidences to prove his residential status and taxability. II) PLEA FOR CONDONATION OF DELAY a) The Assessee is a Non Resident with engineering background with no knowledge of the Tax Laws and has been living out of India since 21-09-2013 and has come to india only once between 05-03-2017 to 28-03-2017; b) That Order-In-Original of the CIT (Appeals) in the Appeal No. 155/2016-17 (AY 2014- 15) dated 21-11-2017 has been delivered at his indian address of the assessee at 94/A Malviya Nagar, Golf Course Scheme Jodhpur 342011 on 27-11-2017; c) That his mother Mrs. Sharda Choudhary who is 65 years of age and illiterate (uneducated), was staying alone at that address. Due to her old age and lack of understanding of the Tax Laws, she could not understand what she has received and communicate to the Appellant and during the entire period Appellant was under an Impression that my case still pending before the CIT (A) d) That the Assessee came to know about the CIT (Appeals) order only in January, 2021. Till this time he was under a bonafide belief that the matter is before the CIT (A) and he has duly submitted all the requisite documents as required and his case will get success. e) That the entire world was suffering from COVID19 and the Hon’ble Supreme Court has also excluded 716 days from 15-03-2020 to 28-02-2022 from the Limitation Period under various laws vide its order in Misc Application No. 21 of 2022 in Suo Motto Writ Petition No. 3 of 2020 dated January 10, 2022 g) Bonafide Efforts made by Appellant - That the appellant despite staying out of India, his lack of knowledge and understanding of the Indian Tax System and the legal remedies available to him, has made his best effort to resolve the issue and to provide and submit the requisite documents for the same, as mentioned below:- - Immediately as soon as he came to know about the CIT(A) order, he tried to connect with the consultant he appointed for CIT(A) in india but he was not reachable; 15 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur - On understanding that the only issue remaining was non submission of the proof of Payment of Tax in USA, he himself submitted a letter dated 31-01-2021 to the DCIT (Intl Tax), Jaipur in which he re-submitted the US Tax Returns (IRS) filed for the calendar year 2013 and 2014. Letter attached on Page 30-31 of the PB. - In absence of any communication from Department, he further filled an Online Grievance on 29-06-2021 on the ITBA Portal requesting to consider these documents attached at page 33 of PB. - He was not aware about the appeal before ITAT and it was only after he received a notice for recovery of demand u/s 221(1), he tried to seek professional advice from an Indian Tax Consultant where he was advised to file an Appeal Before the ITAT. - That the Appellant was staying in Switzerland due to his employment & the entire world was suffering from COVID19. With his limited connection in India, it took him a reasonable time to search, discuss & seek an advice from an Indian Tax Consultant & to prepare the appeal. - He filled the appeal along with the application for condonation of appeal on 12-05- 2022 and the hard copy was submitted on 24-05-2022 after signing and sending from Switerland. h) That the appellant has a strong case of success and seeks justice in india:- - Delay occurred in filing the appeal is completely unintentional and due to bonafide reasons and the conduct of the assessee is not, contumacious or dishonest. - The assessee has strong evidences and legal backing for success in this case - If the delay is not condoned, and the appeal is not heard on merits, the applicant would be put to suffer irreparable loss, which could not be compensated with other relief - On the contrary, if the delay is condoned, at least the matter shall be decided on merits and that in no case would be prejudicial to the interest of the revenue which stands for justice i) REQUEST TO CONDONE DELAY IN FILLING APPEAL:- It is requested that the delay in filing the present appeal, may please be condoned and the appeal may please be decided on merits, in the interest of justice, equity and fair play III) Grounds of Appeal 1. The impugned Order u/s 250 passed by the Ld. CIT(A) – 42, New Delhi in case of Appeal No: 155/2016-17/CIT(A)-42 dated 21.11.2017, ‘is bad in law, as well as on the facts of the Case’ and hence the same is liable to be set aside and the case be decided in favour of the assessee. A) RESIDENTIAL STATUS OF THE APPELLANT i) The Passport along with US Visa and Immigration Stamping is enclosed in Additional Submission of Grounds of Appeal (Page 20) where his stay in india is 174 Days (01-04-2013 to 21-09-2013) during the FY 2013-14. He has returned back to india on 05-03-2017 as verifiable from the Immigration Stamping. ii) He has left india for permanent employment outside india verifiable from 16 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur TRC, VISA (R H1B) and his US IRS Returns; Thus, by virtue of Section 6(1) of IT Act, 1961 (Refer Page 2), he is a Non Resident in India during FY 2013-14. [Note – Ld. A.O. in his order has also accepted his status as Non Residential (Refer Last Line on Page 48 of Original PB)] B) TAXABILITY OF INCOME ACCRUE OR ARISE OUTSIDE INDIA i) Section 5(2) of IT Act, 1961 provides that only income that is received in India or that has accrue or arise in India to a Non Resident is taxable in India; ii) Article 16 of the DTAA between India and USA also provides that the Salary earned by a Resident of a State in that state shall be taxable in that state only. In the current case the Salary from USA has been earned and received in USA and thus taxable in USA; Thus, the Income from Salary earned in USA is not taxable in India . C) ADJUDICATION BY ASSESSING OFFICER The Ld. A. O. has added the Salary earned by the Assessee in USA during the FY 2013-14 and also disallowed the Relief u/s 90 / 90A for the Taxes paid in USA. This is against the principle of Natural Justice. The assessee has sufficient evidences of his residential status, Tax Residency Certificate, and Taxes paid in USA. That the Ld. A. O. has to do the additions and disallowance, based on the Provisions of the Income Tax Act, 1961 and the DTAA and while doing so the mistakes of the Appellant should not be used in the wrongful Interest of the Revenue. The assessee should not be penalised for the inadvertent mistakes or lack of knowledge of law. In the current case, the Ld. A. O. has not allowed the rightful claim of the appellant that his Salary Income from USA is not taxable in India, instead he added them to his total income and concurrently also not granted the benefit of the Relief u/s 90/ 90A. D) APPEAL BEFORE CIT(A) That the Assessee being and NRI and due to lack of knowledge of the Indian Tax Laws, in his appeal before the CIT (A), has submitted a revised computation to the CIT (A) by adding his total global income so that at least he could get the benefit of relief under section 90/ 90A for the taxes paid in USA. That the Since TRC in US was the only document which could not be produced before the Ld. AO during the Assessment proceedings due to bonafide reasons, and 17 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur the same was subsequently submitted before the Ld. CIT(A) during appellate proceedings, the Assessee was under the bonafide belief that all required documents have been submitted and hence the matter will be resolved. That while the Ld. CIT(A) has accepted the TRC submitted by the Assessee, the Ld. CIT has upheld the order of the Ld. AO stating that the Assessee has not produced any evidence towards payment of tax of Rs. 3,34,140/- and dismissed the Assessee’s Appeal on statistical grounds against which the said appeal is being filed [PB Page 39]; That the appeal before the CIT(A) has been rejected for non-submission “evidence towards payment of tax in US” and whereas US Tax Returns (IRS) [PB Page 54-104] filed for the calendar year 2013 and 2014 that are the sufficient evidence was already submitted to the Adjudicating Authority wide E-Mail dated 05 th October, 2015 and Letter Dated 28 th September, 2016 submitted during hearing on 15-09-2015 through POA Sh. Dara Ram Choudhary. This fact has also been mentioned in the Order-In- Original passed by the Adjudicating Authority in Para One [PB Page 48]; E) That as per the principle of natural justice, a person should not be denied of the legal rights and benefits available to him under law, merely because of his lack of knowledge or inadvertent mistakes done by him. Thus, in light of the above facts, the impugned Order u/s 250 passed by the Ld. CIT(A) – 42 is bad in law, as well as on the facts of the Case and hence the same is liable to be set aside and the salary of assessee earned outside india should not be taxed in India and to provide necessary relief accordingly. 2. The Ld. CIT(A) has erred in disallowing treaty benefits to the Assessee by disallowing relief claimed as per India-US DTAA u/s 90 of the Act in spite of providing all specified documents under section 90(4) of the Act r.w. rule 21AB, thereby disregarding the fact that treaty provisions override Income Tax Act and hence the impugned order may kindly be quashed. A) TAX RESIDENCY CERTIFICATE The appellant has submitted the Tax Residency Certificate (TRC) of USA for the Year 2013 and 2014 to the CIT (A) which has been duly accepted. B) USA TAX RETURNS The Appellant has submitted the US Tax Returns for 2013 and 2014 to the Ld. A.O. and the same has also been mentioned in the Order In Original. C) ARTICLE 16 OF INDIA – USA DTAA The salary income received by the Assessee with respect to the services rendered in the United States of America is not liable to tax in India as per article 16 of the India – US DTAA reproduced below for ready reference:- "salaries, wages and other similar remuneration derived by a resident of a contracting state in respect of an employment shall be taxable only in that state unless the employment is exercised in the other contracting state. If the employment is so exercised, such remuneration as is derived therefore may be taxed in that other state." D) That since the global income of the assessee have been taxed by Ld. A. O. in the 18 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur Order In Original, the Appellant has submitted a revised Computation of Income, including his Indian Income and Income earned outside India i.e. USA (global income) along with claim of Relief u/s 90/ 90A E) PRINCIPLE OF NATURAL JUSTICE That as per the principle of natural justice, where the Global Income of the Assessee has been made taxable in India, at least the benefit of Relief u/s 90/ 90A of the Income Tax Act, 1961, must have been granted to the assessee to which he was legally entitled; F) A combined reading of Section 90(4) of the Act r.w. rule 21AB of the Rules, it can be concluded that TRC along with US Tax Returns (IRS) filed for the calendar year 2013 and 2014 is sufficient evidence to substantiate the relief claimed u/s 90 of the Act and no further documents are required in this regard Thus, after evidencing that the Appellant is a Non Resident in India during the FY 2013-14 and his income that accrue or arise outside india in not taxable in India as per the Act and the DTAA, if the Global Income are Taxed in India, then at least the benefit of Relief u/s 90 / 90A must be allowed to him as per law. 3. The Ld. AO has erred to tax the assessee and the Ld. CIT(A) has erred in upholding the order of the Ld. AO, in charging the salary income earned by the Non-Resident Assessee outside India, as taxable in India and disallowing relief claimed as per India-US DTAA u/s 90 of the Act, hence the impugned order may kindly be quashed. A) CASE LAWS 1. Ranjith Kumar Vuppu, Hyderabad vs ITO, on 22.04.2021 (ITA No 86./Hyd/2021), ITAT Hyderabad 2. Sreenivasa Reddy Cheemalamarri Vs. Income Tax Officer, International Taxation – 1, Hyderabad (ITA No. 1463/Hyd/2018) 3. DIT Vs. Prahlad Vijendra Rao (239 CTR 107), Karnataka High Court 4. ITO Vs. Sunil Chitranjan Muncif (2013 58 SOT 356) ITAT, Ahmedabad Thus, light of the provisions of Income Tax Act, 1961, DTAA between India and USA and the catena of cases referred to above, the Ld. AO has erred to tax the assessee and the Ld. CIT(A) has erred in upholding the order of the Ld. AO, in charging the salary income earned by the Non-Resident Assessee outside India, as taxable in India and concurrently disallowing relief claimed as per India-US DTAA u/s 90 of the Act, hence the impugned order may kindly be quashed and the relief be allowed to the assessee. IV) List of Documentary Evidence relied upon 1. US Tax Residency Certificate 2. US IRS Tax Returns 3. Explanatory note before DCIT 4. Passport, VISA and Immigration Stamping 5. Case Laws 19 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur 10. The ld. AR of the assessee has also filed a written submission in respect of the additional ground raised by him and same is also extracted here in below : That the appellant has left India for a Permanent Employment outside India during the relevant F.Y. 2013-14, on 21 st September, 2013. The copy of his Passport along with US VISA document and Immigration Seal is attached as Annexure – 1 for ready reference. Following facts can be verified from the aforesaid documents:- 1.1.1 That as per the Immigration Stamping on his Passport, the Appellant has left India on 21-09-2013 and has only come back for a short visit on 05-03- 2017, and during this entire period he has stayed out of india. The copy of the Passport with Immigration Stamping is attached as Annexure – 1; 1.1.2 That the stay of Appellant in India during the FY 2013-14 was less than 182 Days; 1.1.3 That his VISA clearly mentions that it is a “R H1B” Visa, which is an employment based VISA and as evidence that the appellant has left india for an employment outside india; 1.1. That the Tax Residency Certificate along with the USA IRS Returns of the Assessee for 2013 and 2014 have been submitted along with the Paper Book submitted along with the Appeal [Refer Original PB Page 42-45 and Page 54-104] 1.2. That during the relevant F. Y. 2013-14, the Assessee has earned income from two sources:- 1.3.1 From his Indian employer, that has accrued or arises in India; and 1.3.2 From his US Employer for Services rendered outside india, that has accrued or arises or deemed to accrue or arise outside india. 1.3. That the provisions of “Residency in India” for Individuals are prescribed under Section 6(1) of the Income Tax Act, 1961, which states as below:- 6. For the purposes of this Act,— (1) An individual is said to be resident in India in any previous year, if he— (a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more; or (b) [***] (c) having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty-five days or more, is in India for a period or periods amounting in all to sixty days or more in that year. Explanation 1—In the case of an individual,— (a) being a citizen of India, who leaves India in any previous year as a member of the crew of an Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 20 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur 1958), or for the purposes of employment outside India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted; (b) being a citizen of India, or a person of Indian origin within the meaning of Explanation to clause (e) of section 115C, who, being outside India, comes on a visit to India in any previous year, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted. Thus, on a consolidated analysis of the above definition, if an individual who has left india for a employment outside india during a year, shall be treated as a Non Resident, if following conditions are satisfied:- 1.3.1 His stay in India is less than 182 days; 1.3.2 His stay in India in that year is less than 182 days or during the preceding 4 years is less than 365 days. In the case of the Appellant both the above conditions are satisfied and he qualifies to be a Non Resdient Individual under Income Tax Laws for the F. Y. 2013-14. 1.4. That the Ld. A. O. in his Order-In-Original has also evaluated the issue of Residency of the Appellant and in Para 1 of the Order (Last Line Page 48 of the Paper Book) has also found that the Assessee was a Non Resident as below:- “.... During the year the assessee was Non Resident Indian and declared his income from Salaries during the financial year 2013- 14.” 1.5. That the Non Resident Status of the Assessee is proven from the documentary evidences and the same has also been accepted by the Ld. A.O. in the Order in Original. 1.6. That the “Scope of Total Income” of Non Resident Indians are given under Section 5(2) of the Income Tax Act, 1961 as below:- Section 5(2) of Income Tax Act, 1961:- (2) Subject to the provisions of this Act, the total income of any previous year of a person who is a non-resident includes all income from whatever source derived which— (a) is received or is deemed to be received in India in such year by or on behalf of such person ; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year. Explanation 1 —Income accruing or arising outside India shall not be deemed to be received in India within the meaning of this section by 21 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur reason only of the fact that it is taken into account in a balance sheet prepared in India. Explanation 2 —For the removal of doubts, it is hereby declared that income which has been included in the total income of a person on the basis that it has accrued or arisen or is deemed to have accrued or arisen to him shall not again be so included on the basis that it is received or deemed to be received by him in India. Thus, by virtue of the Provisions of Section 5(2) of the Income Tax Act, 1961, the Income of a Non Resident Individual that Accrue or Arise outside India is Non-Taxable in India. 1.6 That by application of Section 5(2) read along with Section 6 of the income Tax Act, 1961, the entire income that accrue or arise to the Appellant from outside india is Non Taxable in India; 1.7 That the Double Tax Avoidance Agreement (DTAA) between India and USA under Article 16 i.e. “Dependent Personal Service” provides as below:- 1. Subject to the provisions of Articles 17 (Directors' Fees), 18 (Income Earned by Entertainers and Athletes), 19 (Remuneration and Pensions in respect of Government Service), 20 (Private Pensions, Annuities, Alimony and Child Support), 21 (Payments received by Students and Apprentices) and 22 (Payments received by Professors, Teachers and Research Scholars), salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State. 2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first- mentioned State, if:- (a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the relevant taxable year ; (b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State; and (c) the remuneration is not borne by a permanent establishment or a fixed base or a trade or business which the employer has in the other State. 3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operating in international traffic by an enterprise of a Contracting State may be taxed in that State. Thus, It is clear from the above provisions of the DTAA that the Salaries earned by the Appellant in USA shall be taxable in USA and not in India. 22 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur 1.8 That the assessee has duly submitted following documentary evidence for his claim of being a NRI during FY 2013-14 and his NRI status is also accepted by the Ld. AO in the Order in Original:- 1.8.1 Passport for evidence of his stay in India; 1.8.2 His Tax Residency Certificate of USA for 2013 and 2014; 1.8.3 His USA Tax Returns (IRS) filed for the calendar year 2013 and 2014, wherein the Income Tax has been paid on his foreign in income in USA. 1.9 That it is clear from the evidences on record that the Assessee was a Non Resident India (NRI) under Section 6 and by application of Section 5(2) of the Income Tax Act, 1961 read along with Article 16 of the India – USA DTAA, his salary income that he has earned by his employment in USA and has accrue, arise and received outside india is not taxable in India; 1.10 That as per law, the Ld. A.O. has to apply the provisions of Law by disallowing the wrong claim and allowing the rightful benefit of an Individual. In the current case, the Ld. A. O. has not allowed the rightful claim of the appellant that his global incomes are not taxable, instead he added them to his total income and concurrently also not granted the benefit of the Relief u/s 90/ 90A; 1.12 That the Appellant could not raise this ground before the Ld. CIT (Appeals), as he did not had a proper guidance and was not informed by his A/R in this matter and instead he has submitted a revised computation claiming by adding his total global income so that at least he could get the benefit of relief under section 90/ 90A for the taxes paid in USA; 1.13 That as per the principle of natural justice, a person should not be denied of the legal rights and benefits available to him under law, merely because of his lack of knowledge or inadvertent mistakes done by him. 1.14 That the income of assessee by way of salary earned in USA, being a Tax Resident of USA should not be taxed in India. Thus, in light of the above facts, the impugned Order u/s 250 passed by the Ld. CIT(A) – 42 is bad in law, as well as on the facts of the Case and hence the same is liable to be set aside and the salary of assessee earned outside india should not be taxed in India and to provide necessary relief accordingly. 11. The ld. AR of the assessee in addition to the above submission submitted that in the assessment proceedings itself the US tax return was submitted by the assessee. Thus AO was well aware that the assessee is 23 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur non resident and thus, only the income received in India is chargeable to tax as per the relevant provision of the law. Thus, it is not disputed that the assessee is non-resident, has filed the US tax return to justify that the income he has earned outside India is already tax in the country where he received. Since, revenue accepted the fact that the assessee is nonresident, his income earned outside India is required to be excluded. The ld. AR of the assessee also drawn our attention to the findings of the ld. AO recorded at para 2.1 wherein he has agreed that in this case only the relief claimed u/s. 90/90A is required to be withdrawn. But while doing so he has taxed the income which is not received in India stating that as the assessee is demanding relief the relevant income is not offered for tax while filling the return of income. So, while finalizing the assessment he has considered the income which is already earned outside India and offered in tax in US is also considered as income chargeable to tax in India instead of merely denying the relief u/s. 90/90A as proposed in the show cause notice. The ld. AR of the assessee also submitted that while taxing the outside India income the ld. AO has not issued any show cause notice and thus, the addition made is required to be deleted. In the second appeal the ld. CIT(A) did not give any finding about the excess salary earned outside India not chargeable to tax India and upheld the action of the AO merely 24 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur stating that the proof of relief claimed u/s 90/90A is not submitted and did not give finding as to why the salary earned outside India is chargeable to tax India. Thus, the order of the CIT(A) is perverse and non-speaking order. 12. Au contraire, the ld. DR accepted the fact that the assessee is nonresident and his Indian income is only chargeable tax. Since, the ld. AO based on the relief claimed taxed the total income and at the same time he has not submitted the evidence based upon which the relief u/s. 90/90A is claimed be the assessee in his ITR. Thus, fairly he accepted that the income earned outside India is not chargeable to tax India and thus, accepted the contention of the assessee to that extent and supported the order of the lower authorities denying the relief claimed by the assessee. 13. The assessee has raised multiple grounds of appeal. However, at the time of hearing we have carefully perused all the grounds raised by the Assessee. We find that the ground no. 1, 4 & 5 raised by the Assessee, are either academic in nature or contentious in nature and thus, the same did not required any adjudication. The ground no. 2 & 3 raised in this appeal are inextricably interlinked or in fact interwoven, therefore, the same are disposed off to together and to meet the end of justice, we confine 25 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur ourselves to core of the controversy and main grievance of the Assessee. Since the genesis of controversy is from the claim of relief u/s. 90/90A in the ITR filed by the assessee. As the assessee is nonresident, he is not entitled for any relief u/s. 90/90A which the ld. AO has also rightly pointed out in his order at para 2.1 and has also given the show cause notice denying the benefit of relief claimed by the assessee. But while doing so he has taxed the income which the assessee has earned outside India. The said income earned outside India in form of the salary is not chargeable to tax, but merely the assessee has claimed the relief and has not submitted any proof of relief in the assessment. Thus the ld. AO has taxed that income on which relief is claimed. The ld. AO has not disputed that the assessee is non-resident. The ld. AO has also not disputed that the assessee has filed his US tax return in the proceeding before him. We have also seen that the ld. AO has given the show cause notice for rejecting the benefit of relief 90/90A but has not given any show cause notice for considering the additional salary income which the assessee has earned outside India. Thus, we agree on this point from the arguments of the ld. AR of the assessee that the AO is correct on his contention to deny the relief u/s. 90/90A as per the finding recorded in the assessment order but should not have added the income earned outside India. This factual 26 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur aspect is not disputed by the AR of the assessee and ld. DR before us. Thus, the relief that the assessee has claimed in this appeal is that the ld. AO has rightly denied the benefit of relief u/s. 90/90A but while doing so he has erred in taxing the salary income earned outside India. As regards, the income earned by the assessee outside India is not chargeable to tax as fairly accepted by the revenue. Thus, based on the arguments and facts placed on record in the form of the written submission we hold that the amount added by the AO to the extent of Rs. 10,42,948/- is vacated and as the relief as fairy accepted by the ld. AR of the assessee that the same was claimed under the misconception of the law not controverted the denial of the same. Thus, based on these findings the appeal of the assessee is partly allowed. In the result, appeal of the assessee is partly allowed. Order pronounced in the open court on 08/09/2022. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 08/09/2022 *Ganesh Kumar vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 27 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur 1. The Appellant- Sh. Mahindra Dogiyal, Jodhpur 2. izR;FkhZ@ The Respondent- DCIT, Int. Tax, Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (IT(IT)A. 09/JP/2022) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar 28 IT(IT)A. 09/JP/2022 Mahindra Dogiyal vs. DCIT, Int. Tax, Jaipur