JITENDRA KUMAR PANDEY,AMBIENCE APPT. V. .THE ASSISTANT COMMISSIONER, INTERNATIONAL TAXATION, RAJKOT, RAJKOT

ITA 488/RJT/2024

AI Insights

The case involves Jitendra Kumar Pandey, a non-resident Indian and salaried employee of a Singapore-based company, who appealed against the decision of the Commissioner of Income Tax (Appeals), Ahmedabad, which had dismissed his appeal for not condoning the delay in filing and on merits. The primary contention was the denial of relief under section 90 of the Income Tax Act, 1961, which the assessee failed to claim in his original return due to an accountant's error. The Tribunal found that the assessee had made continuous efforts to rectify the mistake and had pursued alternative remedies under the Act, thus meriting the condonation of delay and the relief claimed.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 27282 (ITAT-RAJKOT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Other Referred Cases: Collector, Land & Acquisition v. Mst. Katiji & Others, Sri Suhas Suresh Shet vs. Income Tax Officer, International Taxation
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Assessee Lawyers: SAGAR SHAH; GOVERNMENT SHIPPING OFFICE MUMBAI; BEARING; DECLARING TOTAL INCOME OF RS.; DATED ..; GOVERNMENT
• Keywords: Revised return; Salary income; Principle of natural justice; Rectification of order; Right to appeal; Revision of order; Bogus
• Section: 154; 143(1); 90; 264; 119(2)(b)

Judgement Text

" Page | 1 ITA No.488/RJT/2024 Jitendra Kumar Pandey IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./ITA No.488/RJT/2024 (Ǔनधा[रण वष[ / Assessment Year: (2013-14) (Physical Hearing) Jitendra Kumar Pandey Khambhalia, Dwarka Highway Near Vishal Hotal Jamnagar-361006 Vs. The ACIT, International Taxation, Rajkot èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AGVPP9159Q (Assessee) (Respondent) Assessee by : Shri Sagar Shah, AR Respondent by : Shri Abhimanyu Singh Yadav, Sr. DR Date of Hearing : 11/11/2024 Date of Pronouncement : 18/12/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to assessment year (AY) 2013-14, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), Ahmedabad, [Ld. CIT(A)’], dated 17.05.2014, which in turn arises out of a rectification order passed by the Assessing Officer (in short ‘AO’) u/s 154 of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’), dated 05.10.2021. 2. Although, this appeal filed by the Assessee, for Assessment Year (AY) 2013-14, contains multiple ground of appeals. However, at the time of hearing we have carefully perused all the grounds raised by the Assessee. Page | 2 ITA No.488/RJT/2024 Jitendra Kumar Pandey We find that most of the grounds raised by the Assessee, are either academic in nature or contentious in nature. However, to meet the end of justice, we confine ourselves to the core of the controversy and main grievances of the Assessee. With this background, we summarize and concise the grounds raised by the Assessee as follows: “On the basis of facts and circumstances of the case the learned Commissioner of Income Tax (Appeals) has erred in law as well as on facts by not condoning the delay in filling appeal and also erred in not considering the merits of the case that the appellant is entitled for the relief u/s 90 of the Act.” 3. Succinctly, the factual panorama of the case is that assessee before us is an Individual and has filed return of income for assessment year 2013-14 on 24.09.2013, declaring total income at Rs.6,19,420/-. The said return was processed u/s. 143(1) of the Act on 29.11.2013 by the CPC (AO) accepting the income returned at Rs.6,10,420/-. Against the order u/s. 143(1) of the Act passed by the CPC, the assessee filed a rectification application u/s 154 of the Act on 27.03.2017. In the rectification application dated 27.03.2017, the assessee stated that he is a non-resident and salaried employee of Singapore based company and worked as a crew member of shipment of Singapore based company during the year. It was further stated that due to lack of knowledge of his Accountant, the salary income of Rs.6,19,420/- earned in Singapore was shown in the return of income for the assessment, year (A.Y.) 2013-14. On verification of the return of income for assessment year 2013-14, it was noticed by the AO that the assessee has not claimed any relief u/s.90 of the I.T. Act and accordingly, order u/s 143(1) of the Act was passed, accepting the income returned and no disallowance u/s.90 of the I.T. Act was made as the same was not claimed in the return of income. In view of the facts mentioned above, the Assessing Officer held that there is no any mistake apparent from records and therefore, the assessee's Page | 3 ITA No.488/RJT/2024 Jitendra Kumar Pandey request for rectification u/s 154 of the Act was rejected by the Assessing Officer. 4. Aggrieved by the order of the assessing officer, the assessee carried the matter in appeal before the CIT(A) who has not condoned the delay in filing appeal for 682 days. Besides, the Ld. CIT(A) also dismissed the appeal of the assessee on merits. The conclusion reached by the ld CIT (A) is reproduced below: “4.1 I have considered the appellant's application for condoning the delay in filing appeal and the entire facts of the case carefully and I find that the appellant has rightly pursued the other legal remedy available with the appellant such as filing application u/s 264 of the I.T. Act and application u/s 119(2)(b) of the Act for condoning the delay in claiming the relief u/s 90 of the Act. The appellant impugned appeal against the rectification order is barred by limitation and based on the facts available on record, I do not find merit in the submission of the appellant for condoning the delay in filing appeal against the order u/s 154 dated 05.10.2021. Without prejudice to the above, I concur with the finding of the AO that there is no mistake apparent from record in the intimation u/s 143(1) dated 29-11-2013 which can be rectified u/s 154 of the Act. As a result grounds of appeal are dismissed.” 5. Aggrieved by the order of the CIT(A), the assessee is in further appeal before us. 6. Learned Counsel for the assessee, argued that the assessee is entitled for the relief u/s 90 of the Act, as the assessee is salaried employee of Singapore based company working as a crew member of shipment and is a person of Indian origin and appellant is not permanent employee of any of the companies or corporations in India or other country and been holding a Continuous Discharge Certificate-Cum- Seafarer's identity document issued to the assessee by Government Shipping Office- Mumbai, bearing certificate No. MUM146721.The Ld. Counsel stated that due to mistake of the accountant, the assessee could not claim the exemption, as per the Page | 4 ITA No.488/RJT/2024 Jitendra Kumar Pandey provisions of section 90 of the Act and Ld. CIT(A) has not considered this fact that the assessee is entitled for relief u/s 90 of the Act. 7. The Ld. Counsel has also submitted that Ld.CIT(A) did not condone the delay in filing the appeal, despite of the fact that assessee has explained the sufficient cause to condone the delay. Considering the facts of the assessee`s case, the Ld. CIT(A) ought to have condoned the delay in filing the appeal and benefit of the provisions of Section 90 of the Act ought to have been provided to the assessee. 8. On the other hand, Ld. Department Representative for the revenue argued that assessee was seeking alternative remedy under the Act therefore, the present appeal of the assessee may be dismissed and the assessee may file a writ petition before the Hon’ble Jurisdictional High Court. The assessee under consideration has exercised to remedies Viz (i) Filed application u/s 264 of the I.T. Act to revise order in favour of assessee, and (ii)Filed application u/s 119(2)(b) of the Act, for condoning the delay in claiming the relief u/s 90 of the Act. These two applications of the assessee were rejected by the authorities, and against the rejection of these two applications, the assessee may file a writ petition before the Hon’ble Jurisdictional High Court, therefore, the present appeal of the assessee may be dismissed. The Ld. DR further stated that there was a delay in filing appeal before the Ld. CIT(A) for 682 days, which may not be condoned and appeal of the assessee may be dismissed. 9. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on Page | 5 ITA No.488/RJT/2024 Jitendra Kumar Pandey record. We note that assessee has submitted the following reasons for delay in filing appeal before the Ld. CIT(A), which are reproduced below: “1. Sir, I am Indian origin non-resident individual living in Singapore with my family members and earning salary income from employment in Singapore based company working as crew member of shipment. 2. For the year under consideration accountant of the appellant has filed the return of income of appellant by declaring total income of Rs.6,19,420/- dated 24.09.2013 without claiming the relief under the provision of section 90 of the Income Tax Act, 1961. The same was processed and intimation u/s. 143(a) of the act dated 29.11.2013 was passed by raising the demand of Rs.63,110/- 3. Subsequently a revised return was filed on 28.06.2014 by the appellant by claiming relief u/s. 90 of act as doubly taxed income. However, the same was rejected and demand raised. 4. The appellant was not aware of this fact as he was deputed on foreign ships during most time of the year and his former consultant also did not intimate him. 5. On being issuance of intimation u/s. 245 of the act regarding appellant was aware about the proposed adjustment of refund of A.Y. 2016-17. 6. Thereafter appellant has sought advice from another Chartered Accountant and filed rectification request u/s. 154 of the act dated 27.03.2017. 7. Additionally, to regularize revised return filed by the appellant the condonation application under section 119(2) dated 10.10.2018, 02.02.2019 & 23.02.2019 before the Principal Commissioner of Income Tax, International Taxation, Ahmedabad. However, the same was never considered by the authority. The ack of application filed are enclosed at page no. 01 to 01. 8. The same was rejected vide the order dated 13.10.2021, it was only came to knowledge of the appellant while passing of order u/s. 264 dated 29.12.2022 wherein the mention of rejection of application u/s. 119(2)(b) was made. However the appellant has never communicated regarding the same through email, by uploading order on e- filling portal or by communicating the same through physical medium. 9. Moreover, appellant received the order against the application made u/s. 154 of the act on 05.10.2021 rejecting the application of rectification on mere ground that \"On verification of the return of income for A.Y.2013-14, it is seen that the assessee has not claimed any relief u/s 90 of the I.T. Act and accordingly, order u/s. 143(1) of the Act was passed accepting the income returned and no disallowance u/s.90 of the I.T. Act was made as the same was not claimed in the return of income.\" 10. The Ld. Assistant/Deputy Commissioner of Income Tax, Rajkot has failed to appreciate that non claiming of relief u/s. 90 of the act was mistake made by the accountant of the appellant, however the claim of the appellant was genuine as there is similarity of the facts in appellant's own case in A.Y. 2012-13 and A.Y. 2014-15 And the hence the claim of the appellant should be accepted. Page | 6 ITA No.488/RJT/2024 Jitendra Kumar Pandey 11. Moreover, as no response was received from the office of the Principal Commissioner of Income Tax, International Taxation, Ahmedabad for condoning the delay in filling revised return even when more than 2 to 3 years have already been passed, to get justice for non-taxing of foreign income doubly, appellant has also filed the Application under the provision of section 264 of the Income Tax Act, 1961 to revise the order passed us. 143(1) of the Income Tax Act passed by the CPC. 12. Even having the merits in the case of appellant and similarity of the facts in previous assessment year and subsequent assessment years the justice has not been granted by any authority of Income Tax by mere reason that \"the claim was not claimed original return of income\" / \"Revise Return was filed belatedly\" / \"The application was filed belatedly\". Moreover, none of the authorities are paying attention to the genuineness of the claim of appellant and hardship caused due to such minor error committed by the accountant of appellant. 13. Appellant on receipt of order u/s. 264 of the act dated 29.12.2022 another mercy petition to review the order passed u/s 264 of the act on 01.02.2023, however as no communication was received even after lapse of almost 7 months as last resort to get justice filling this appeal before your honour. (1) Appellant was also making reminder to the CIT (IT &TP) to take steps in considering the review petition of the appellant. However the same was rejected vide the mail dated 05.09.2023 by stating that \"In response to your email dtd. 01.02.2023 and trailing email, it is to state that as per the Act, there is no provision to review the order passed u/s 264 of the I.T. Act.\", copy of the mail is enclosed at page no. 02 to 02. 14. Hence due to not getting desired result from various authorities in considering my application I would like to opt for the last remedy available to get justice. 15. Your honour will appreciate that appellant is making continues efforts to get justice for almost 8-9 years before various authorities in various routes. In filling this much applications and to get justice appellant is making efforts from foreign country. 16. As much of the time was taken by various authorities in considering the petition of appellant, it is requested your honour to kindly condone the delay in filling appeal which is due to the reason of not considering the request of appellant. 17. The only reason for which appellant has not preferred an appeal is that petition u/s. 264 of the act was pending before the Commissioner of Income Tax (International Taxation) and appellant is very much hopeful for favourable response from the CIT (IT). However due to no response even such that much effort was made by the appellant this appeal is being filed as a last resort to get justice. 18. Hence the reason for the delay in filling appeal by 682 days is merely due to non- response from the various authorities and hopefulness of the appellant to get positive response from such authorities. 19. Further, I would like to rely on the judicial pronouncement wherein order passed by the Honorable Supreme Court in (1987) 167 ITR 471(SC) in the case of Collector, Land & Acquisition v. Mst. Katiji & Others wherein court held that \"The legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act Page | 7 ITA No.488/RJT/2024 Jitendra Kumar Pandey 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice-that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But, the message does not appear to have percolated down to all the other Courts in the hierarchy. The copy of the order is enclosed at page no. 03 to 06. 20. The Honorable Income Tax Appellate Tribunal, Bengaluru in the case of Sri Suhas Suresh Shet vs. Income Tax Officer, International Taxation in ITA No. 607/bang/2021 has held that \"When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non deliberate delay. Moreover, no counter-affidavit was filed by the Revenue denying the reasons advanced by the assessees. It is not the case of the Revenue that the appeals were filed deliberately with delay. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorized by an authority of law. Therefore, if we refuse to condone the delay that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the authority. Therefore, in our opinion, by preferring the substantial justice, the delay has to be condoned. \"The copy of the judgment is enclosed from page no. 07 to 16. 21. Thus, on perusal of the above stated reasons of delay and relied upon judgment, Your Honor will appreciate the fact that this delay has not benefited me in any way but was carrying the risk of delaying the same. In the light of facts and circumstances stated hereinabove, I pray before Your Honor with both the hand folded to kindly condone the delay in bringing this appeal in the interest of justice for which act of kindness, I shall over remain obliged to your honor. Inconvenience caused in the matter is deeply regretted.” 10. Having gone through the above petition for condonation of delay, which was filed by the assessee before the ld. CIT(A), during the appellate proceedings, requesting the ld. CIT(A) to condone the delay of 682 days, we noticed that assessee has explained clearly the sequence of events stating that why the delay of 682 days has occurred in filing the appeal.We find that assessee was exercising alternative remedies available to him Page | 8 ITA No.488/RJT/2024 Jitendra Kumar Pandey under the Act, and assessee has right to exercise these alternative remedies available to him, as provided by the Income Tax Act. The assessee had exercised two alternative remedies Viz: (i) Filing application u/s 264 of the I.T. Act, for revision of order in favour of assessee, and (ii) Filing an application u/s 119(2)(b) of the Act, for condoning the delay in claiming the relief u/s 90 of the Act. 11. In considering the condonation petition, it is to be remembered that statutes conferring a right of appeal must be construed in furtherance of justice and the provision limiting the time for bringing an appeal must be liberally interpreted, so that the party pursuing such remedy allowed to him by the law is not non-suited on mere technicalities. Where no negligence, nor inaction, or want of bona fides can be imputed to the appellant, a liberal construction of the provisions has to be made in order to advance substantial justice. A perusal of the sufficient cause noted above, gives us an impression of existence of mitigating circumstances to enable us to exercise our discretion in favour of the assessee. Accordingly, the delay 682 days is condoned. 12. We note that solitary issue in assessee`s appeal relates to denial of benefit u/s 90 of the Income Tax Act to the assessee. The assessee has filed return of income declaring total income of Rs. 6,19,420/-, without claiming the relief under the provisions of section 90 of the Income Tax Act, 1961 and the same was processed and intimation u/s 143(1) of the Act and was passed raising a demand of Rs. 63,110/-. Subsequently, the assessee filed revised return claiming relief u/s 90 of the Income Tax Act, 1961, however, the same was treated as invalid being filed belatedly. We note that all the facts and evidences pertaining to assessee`s case were before the lower authorities, therefore additional claim raised by the assessee in the revised Page | 9 ITA No.488/RJT/2024 Jitendra Kumar Pandey return may be entertained by the appellate authorities. Although, revised return of income was filed by the assessee late, however, we noticed that assessee was exercising alternative remedies, before the lower authorities, such as filing application u/s 264 of the I.T. Act, for revision of order in favour of assessee, and filing an application u/s 119(2)(b) of the Act, for condoning the delay in claiming the relief u/s 90 of the Act, hence, all facts pertaining to assessee`s case were before the lower authorities, therefore appellate authority can entertain such claim of the assessee. 13. We note that non -claiming of relief/exemption as per provision of section 90 of the Act, is an error made by the accountant of the assessee. We note that on the basis of similar facts in the case of assessee, in the previous assessment year, and in subsequent year, the relief u/s 90 of the Act, was allowed by Income Tax Appellant Tribunal, Rajkot in assessment year 2012-13 and by Ld. Additional Commissioner of Income Tax (International Taxation), Rajkot in the Α.Υ. 2014-15. We also find that assessee, under consideration is entitled for the relief u/s 90 of the Act, as the assessee is salaried employee of Singapore based company working as a crew member of shipment and is a person of Indian origin and appellant is not permanent employee of any of the companies or corporations in India or other country and been holding a Continuous Discharge Certificate- Cum- Seafarer's identity document issued to the assessee by Government Shipping Office- Mumbai, bearing certificate No. MUM146721.Therefore, we find that claim raised by the assessee is not bogus and it is a genuine claim of the assessee. The principle of natural justice demands that a fair treatment should be given to the assessee to compute his taxable income. The Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, Page | 10 ITA No.488/RJT/2024 Jitendra Kumar Pandey quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Considering these facts, we find that assessee is entitled for the relief u/s 90 of the Act, for amounting to Rs.5,11,894/-, for the year under consideration. Therefore, we direct the assessing officer to grant the relief to the assessee, under section 90 of the Act. 14. In the result, the appeal of the assessee is allowed. Order is pronounced in the open court on 18/12/2024 Sd/- Sd/- (DINESH MOHAN SINHA) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Patel & SKS, Sr. PS True Copy Rajkot Ǒदनांक/ Date: 18/12/2024 Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr. CIT 5. DR/AR, ITAT, Rajkot 6. Guard File By Order Assistant Registrar/Sr. PS/PS ITAT, Rajkot "