Shri Tapan Krishna Pattanaik, Kolkata V. DDIT(TT)-3(1), Kolkata, Kolkata

MA 163/KOL/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5724 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 22-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH TIWARI
• Keywords: Services rendered outside India

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, AM AND SHRI S.S. VISWANETHRA RAVI, JM M.A NO. 163/KOL/2016 (ARISING OUT OF ITA NO. 68/K/2016, ASSESSMENT YEAR:2011-12 SHRI TAPAN KRISHNA PATTANAIK KOLKATA 700020 PAN NO. AELPP9540B VS. D.D.I.T. (TT) 3(1) KOLKATA - 700107 APPLLICANT .. RESPONDENT ASSESSEE BY : SHRI MANISH TIWARI, FCA DEPARTMENT BY : SHRI SALLONG YADEN, ADDL. CIT DATE OF HEARING : 26.05.2017 DATE OF P RONOUNCEMENT : 16.06.2017 O R D E R PER P.M. JAGTAP, ACCOUNTANT MEMBER: BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED 10.06.2016 PASSED IN ITA NO. 68/K/2016. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE DECISION RENDERED BY THE TRIBUNAL VIDE ITS ORDER DATED 10.06.2016 (SUPRA) HOLDING THAT THE INCOME EARNED BY THE ASSESSEE, A NON-RESIDENT MARINE ENGINEER, FOR SERVICES RENDERED OUTSIDE INDIA IS CHARGEABLE TO TAX IN INDIA AS PER THE PROVISIONS OF SECTION 5(2)(A) OF THE INCOME TAX ACT, 1961 IS CONTRARY TO THE 2 M.A. NO.163/KOL/2016 (A.Y. 2011-12) DECISION OF HONBLE KOLKATA HIGH COURT IN THE CASE OF UTANKA ROY VS DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) AND OTHERS [390 ITR 109] RENDERED SUBSEQUENTLY AND THIS POSITION IS NOT DISPUTED BY THE LEARNED DR. IN THE CASE OF M/S. GREEN MEADOWS PVT. LTD. VS ITO (M.A. NO. 269/DEL/2014 DATED 19.02.2016) CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE, DELHI BENCH OF THIS TRIBUNAL HAS HELD THAT THE DECISION RENDERED BY THE TRIBUNAL, WHICH IS CONTRARY TO THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT, EVEN IF RENDERED SUBSEQUENTLY, GIVES RISE TO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL. ACCORDINGLY, THE ORDER PASSED IN THE CASE OF M/S. GREEN MEADOWS PVT. LTD TAKING A VIEW CONTRARY TO THE VIEW TAKEN BY THE HONBLE JURISDICTIONAL HIGH COURT SUBSEQUENTLY WAS RECALLED BY THE TRIBUNAL WITH THE DIRECTION TO THE REGISTRY TO FIX THE CORRESPONDING APPEAL OF THE ASSESSEE FOR HEARING AFRESH BEFORE THE REGULAR BENCH. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. GREEN MEADOWS PVT. LTD. (SUPRA), WE RECALL THE ORDER OF THE TRIBUNAL DATED 10.06.2016 PASSED IN ITA NO. 68/K/2016 AND DIRECT THE REGISTRY TO FIX THE SAID APPEAL FOR HEARING AFRESH BEFORE THE REGULAR BENCH ON 28.06.2017. 4. IN THE RESULT, THE MISC. APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JUNE, 2017 SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDIDCIAL MEMBER ACCOUNTANT MEMBER DATED:16/06/2017 3 M.A. NO.163/KOL/2016 (A.Y. 2011-12) COPY OF ORDER FORWARDED TO: 1 SHRI TAPAN KRISHNA PATTANAIK, KOLKATA. 2 DDIT (TT) 3(1), KOLKATA 3 THE CIT(A), 4 THE CIT 5 DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA