Sri. Mohammed Haris T, Calicut V. The DCIT, Calicut

MA 152/COCH/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6178 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 04-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Assessee Lawyers: ASWIN GOPAKUMAR
• Keywords: Residential status
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJARI, AM & SHRI GEORGE GEORGE K, JM MA NO. 149 /COCH/201 6 : ASST.YEAR 2005 - 2006 (ARISING OUT OF ITA NO. 421 /COCH/2015) MA NO. 150 /COCH/201 6 : ASST.YEAR 2006 - 2007 (ARISING OUT OF ITA NO.422/COCH/2015) MA NO. 151 /COCH/201 6 : ASST.YEAR 2007 - 2008 (ARISING OUT OF ITA NO.42 3 /COCH/2015) MA NO. 152 /COCH/201 6 : ASST.YEAR 2008 - 200 9 (ARISING OUT OF ITA NO. 424 /COCH/2015) MA NO. 153 /COCH/201 6 : ASST.YEAR 2009 - 2010 (ARISING OUT OF ITA NO.42 5 /COCH/2015) MA NO. 1 54 /COCH/201 6 : ASST.YEAR 2010 - 2011 (ARISING OUT OF ITA NO.42 6 /COCH/2015) MA NO. 155 /COCH/201 6 : ASST.YEAR 2011 - 2012 (ARISING OUT OF ITA NO. 427 /COCH/2015) SRI.MOHAMMED HARIS T ALANKAR MANZIL, KANNACHERY KALLAI ROAD, CALICUT. PAN : ALEPM8448B. VS. THE DY.COMMISSIONER OF INCOME - TAX CIRCLE - 1, KOZHIKODE. (APP L ICA NT) (RESPONDENT) APPLICANT BY : SRI. ASWIN GOPAKUMAR , ADVOCATE RESPONDENT BY : SRI. A.DHANARAJ, SR.DR DATE OF HEARING : 23 .03.2018 DATE OF PRONOUNCEMENT : 23 .03.2018. O R D E R PER GEORGE GEORGE K, JM THESE MISCELLANEOUS APPLICATION S AT THE INSTANCE OF THE ASSESSEE ARISE OUT OF CONSOLIDATED ORDER OF THE TRIBUNAL IN ITA NOS. 421 TO 427/COCH/2015 (ORDER DATED 04.01.2016). M A NO S . 149 TO 155 / COCH /201 6 SRI.MOHAMMED HARIS T. 2 2. BRIEF FACTS OF THE CASE ARE AS FOLLOW: - 2.1 THE ASSESSEE AN INDIVIDUAL, IS ONE OF THE DIRECTORS OF M/S.ALHIND TOURS AND TRAVELS (P) LTD. THERE WAS A SEARCH U/S 132 OF THE INCOME - TAX ACT IN THE PREMISES OF M/S.ALHIND TOURS AND TRAVELS (P) LTD. ON 10.11.2010. THE ASSES SMENT U/S 153C OF THE I.T.ACT WAS COMPLETED IN ASSESSEES HANDS FOR ASSESSMENT YEARS 2005 - 2006 TO 2011 - 2012. THE CLAIM OF THE ASSESSEE THAT HE WAS AN NRI FOR A.YS 2005 - 2006 TO 2011 - 2012 , WAS DENIED BY THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT U /S 153C OF THE I.T.ACT FOR THE REASON THAT ASSESSEE HAD FAILED TO PRODUCE THE DOCUMENTS IN SUPPORT OF HIS CLAIM . 2.2 AGAINST THE ASSESSMENT COMPLETED U/S 153C OF THE I.T.ACT, THE ASSESSEE FILED APPEALS BEFORE THE CIT(A) FOR ASST.YEARS 2005 - 2006 TO 2011 - 2 012. THE CIT(A) HAD PARTLY ALLOWED THE APPEALS OF THE ASSESSEE, HOWEVER, THE CLAIM OF THE ASSESSEE REGARDING NRI STATUS WAS DENIED BY THE CIT(A) . 2.3 AGGRIEVED BY THE ORDER OF THE CIT(A), FURTHER APPEALS WERE PREFERRED TO THE TRIBUNAL. THE TRIBUNAL VIDE ITS ORDER DATED 04.01.2016 IN ITA NOS.421 TO 427/COCH/2015 HELD THAT THE ASSESSEE IS NOT AN NRI SINCE NO CONCLUSIVE PROOF ABOUT HIS RESIDENTIAL STATUS WAS FURNISHED AT THE TIME OF HEARING BEFORE THE TRIBUNAL . 2.4 AGGRIEVED BY THE ORDER OF THE ITAT, THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATIONS. THE LEARNED AR HAS SUBMITTED THAT THE ASSESSEE WAS ABLE TO TRACE OUT THE ORIGINAL PASSPORT AND A CERTIFIED COPY OF THE SAME WAS MARKED AS M A NO S . 149 TO 155 / COCH /201 6 SRI.MOHAMMED HARIS T. 3 ANNEXURE A - 1 IN THE MISCELLANEOUS APPLICATIONS FILED. THE A SSESSEE HAS ALSO FURNISHED A CHART SHOWING THE DATE OF DEPARTURE AND ARRIVAL IN EACH OF THE ASSESSMENT YEARS ( ANNEXURE A - 2 ) . IT WAS SUBMITTED ON PERUSAL OF THE PASSPORT AND THE CHART , IT IS CLEARLY DISCERNABLE THAT THE ASSESSEE WAS ABROAD FOR MORE THAN 180 DAYS IN EACH OF THE ASSESSMENT YEARS . THEREFORE, IT WAS SUBMITTED THAT THE ASSESSEE WAS ENTITLED TO THE BENEFIT OF N R I STATUS. 2.5 THE LEARNED DEPARTMENTAL REPRESENTATIVE PRESENT WAS DULY HEARD. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. WHEN THE MATTER WAS HEARD BY THE TRIBUNAL ON 28.12.2015, THE LEARNED AR HAD FAIRLY SUBMITTED THAT THE DATE OF DEPARTURE AND ARRIVAL WITH REGARD TO THE ASSESSEE IN INDIA CANNOT BE PROPERLY ASCERTAINED . THEREFORE, IT WAS CONCEDED THAT THE STATUS AS NRI CANNOT BE CONCLUSIVELY ESTABLISHED. NOW THE CASE OF THE ASSESSEE IN THESE MISCELLANEOUS APPLICATIONS IS THAT THE PASSPORT WAS RETRIEVED AND ON PERUSAL OF THE SAME IT CLEARLY SHOWS THAT THE ASSESSEE WAS ABROAD FOR MORE THAN 180 DAYS IN EACH OF THE ASSESSMENT YEARS . T HEREFORE, THE ASSESSEE WAS ENTITLED TO THE BENEFIT OF STATUS AS AN NRI FOR A.YS 2005 - 2006 TO 2011 - 2012 . WE ARE CONSIDERING A RECTIFICATION APPLICATION U/S 254(2) OF THE I.T.ACT. THE SCOPE OF RECTIFICATION U/S 254(2) OF THE I.T.ACT I S VERY LIMITED AND IS CONFINED TO ONLY CORRECTING THOSE ERRORS WHICH ARE APPARENT ON RECORD. ADMITTEDLY, IN THIS CASE THE AR OF THE ASSESSEE AT THE TIME OF HEARING OF INCOME TAX APPEALS HAD CONCEDED THAT THE CLAIM OF STATUS AS AN NRI CANNOT BE M A NO S . 149 TO 155 / COCH /201 6 SRI.MOHAMMED HARIS T. 4 CONCLUSIVELY ESTABLISHED AND NO DOCUMENTARY PROOF IN THIS REGARD WAS FURNISHED. WHEN THE ASSESSEE, IN THE COURSE OF INCOME TAX APPEALS, COULD NOT PRODUCE THE PASSPORT EVIDENCING HIS NRI STATUS, THERE IS NO MISTAKE APPARENT IN THE TRIBUNALS ORDER DATED 04.01.2016 IN ITA NOS.421 TO 427/COCH/2015. SINCE THERE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER DATED 04.01.2016, WE CANNOT EXERCISE OUR POWERS U/S 254(2) OF THE ACT, WHICH IS VERY LIMITED IN SCOPE. IT IS ORDERED ACCORDINGLY. 4 . IN THE RESULT, THE MAS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THIS 23 RD DAY OF MARCH, 2018 . SD/ - SD/ - (CHANDRA POOJARI) ( GEORGE GEORGE K. ) ACCOUNTANT MEMBER JUDICIAL MEMBER C OCHIN ; DATED : 23 RD MARCH, 2018 . DEVDAS* COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT. REGISTRAR) ITAT, COCHIN 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT(A) - IV , KOCHI. 4. THE CIT (CENTRAL) , KOCHI . 5. DR, ITAT, COCHIN 6. GUARD FILE.