D.C.I.T.,Circle-2(1), Kolkata V. Rajat Dhara, Kolkata

MA 03/KOL/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7888 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-08-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 01-02-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Salary income
• Section: 191; 20

Judgement Text

M.A. NO. 03/KOL/2021 (IN ITA NO . 1914/KOL/2019) A.Y. 20 16-2017 RAJAT DHARA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA (VIRTUAL COURT HEARING) BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) & SHRI A.T. VARKEY, JUDICIAL MEMBER M.A. NO. 03/KOL/2021 (ARISING OUT OF I.T.A. NO. 1914/KOL/2019) ASSESSMENT YEAR: 2016-2017 DEPUTY COMMISSIONER OF INCOME TAX,................. ....................APPLICANT CIRCLE-2(1), KOLKATA, AAYAKAR BHAWAN (POORVA), 110, SHANTIPALLY, KOLKATA-700107 -VS.- RAJAT DHARA,....................................... .....................................RESPONDENT C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDDHA GIBSON, 1, GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA-700069 [PAN: ABQPD1200L] APPEARANCES BY: SMT. MADHU MALTI GHOSH, ADDL. CIT, FOR THE APPLICANT SHRI SUBASH AGARWAL, ADVOCATE, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : AUGUST 27, 2021 DATE OF PRONOUNCING THE ORDER : AUGUST 27, 2021 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT:- BY THIS MISCELLANEOUS APPLICATION, THE REVENUE IS SEEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED AUGUST 12, 2020 PASSED IN ITA NO. 19 14/KOL/2019. M.A. NO. 03/KOL/2021 (IN ITA NO . 1914/KOL/2019) A.Y. 20 16-2017 RAJAT DHARA 2 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE REVENUE IN THE PRESENT MISCELLANEOUS APPLICATION AND FURTHER REITE RATED BY THE LD. DEPARTMENTAL REPRESENTATIVE AT THE TIME OF HEARING BEFORE US, THE ISSUE INVOLVED IN THE ASSESSEES APPEAL BEING ITA NO. 191 4/KOL/2019 RELATING TO THE TAXABILITY OF SALARY RECEIVED BY THE ASSESSE E IN U.S.A. AMOUNTING TO RS.42,58,111/- IN INDIA WAS DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 12.08.2020 BY RELYING ON THE DECISION OF THE HONBL E CALCUTTA HIGH COURT IN THE CASE OF UTANKA ROY VS.- DIT IN W.P. NO. 369 OF 2014 DATED 15.12.2016 IN FAVOUR OF THE ASSESSEE HOLDING THAT T HE SALARY INCOME WAS TAXABLE IN THE COUNTRY WHERE THE CORRESPONDING SERV ICES ARE RENDERED AND NOT IN INDIA. THE LD. D.R. HAS CONTENDED THAT T HE ASSESSEE IN THE PRESENT CASE IS A RESIDENT IN INDIA WHILE THE ASSES SEE IN THE CASE OF UTANKA ROY (SUPRA) DECIDED BY THE HONBLE CALCUTTA HIGH COURT WAS A NON-RESIDENT AND THE RATIO OF THE SAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT THUS IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE. EVEN THE LD. COUNSEL FOR THE ASSESSEE HAS NOT DISPUTED THIS POSITION. HE HAS SUBMITTED THAT THE ASSESSEE IN THE PRESENT CASE BEING THE RESIDENT IN INDIA, THE DECISION OF THE HONBLE CALC UTTA HIGH COURT IN THE CASE OF UTANKA ROY (SUPRA) IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE. IT IS THUS CLEAR THAT THE MATERIAL DISTINCTION IN THE FACTS OF THE CASE AS INVOLVED IN THE PRESENT CASE, VIS-A-VIS THE CASE OF UTANKA ROY WAS NOT CONSIDERED BY THE TRIBUNAL WHILE DECIDING THE ISSUE INVOLVED IN THIS CASE IN FAVOUR OF THE ASSESSEE BY RELYING ON THE DECISIO N OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF UTANKA ROY (SUPR A) AND THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 12.08.20 20 PASSED IN ITA NO. 1914/KOL/2019. WE, THEREFORE, RECTIFY THE SAID MIST AKE BY RE-CALLING THE SAID ORDER OF THE TRIBUNAL AND RESTORE THE APPEAL O F THE ASSESSEE BEING ITA NO. 1914/KOL/2019 TO ITS ORIGINAL NUMBER. THE R EGISTRY IS DIRECTED TO FIX THE SAID APPEAL FOR HEARING BEFORE THE REGUL AR BENCH ON 30 TH SEPTEMBER, 2021 . M.A. NO. 03/KOL/2021 (IN ITA NO . 1914/KOL/2019) A.Y. 20 16-2017 RAJAT DHARA 3 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 27, 20 21. SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE-P RESIDENT (KZ) KOLKATA, THE 27 TH DAY OF AUGUST, 2021 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2(1), KOLKATA, AAYAKAR BHAWAN (POORVA), 110, SHANTIPALLY, KOLKATA-700107 (2) RAJAT DHARA, C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDDHA GIBSON,1, GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-22 KOLKA TA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY/DDO, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.