SHALINI SEEKOND, MUMBAI V. INCOME TAX OFFICER WARD 3(3)(2), MUMBAI

MA 231/MUM/2018

• Counselvise Citation: [2020] 107 COUNSELVISE.COM (IT) 9340 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 27-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JOTILAKSHMI NAYAK
• Assessee Lawyers: MRS SHALINI SEEKOND
• Keywords: Double taxation relief; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.231/M/2018 (ITA NO.1506/M/2016) ASSESSMENT YEAR: 2007-08 MRS. SHALINI SEEKOND, 6/15, SHYAM NIWAS, BHULABHAI DESAI ROAD, MUMBAI 400 026 PAN: ANHPS 1350D VS. INCOME TAX OFFICER 3(3)(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : MRS. SHALINI SEEKOND REVENUE BY : MS. JOTI LAKSHMI NAYAK, D.R. DATE OF HEARING : 01.02.2019 DATE OF PRONOUNCEMENT : 14.07.2020 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE A SSESSEE SEEKS THE RECTIFICATION OF THE ORDER PASSED BY TRIB UNAL IN ITA NO.1506/M/2016 A.Y. 2007-08. 2. THE LD. A.R., AT THE OUTSET, SUBMITTED THAT WHIL E PASSING THE ORDER IN THE ABOVE APPEAL ,THE TRIBUNAL HAS NO T COMPLETED THE PARAGRAPH 3.1 INADVERTENTLY. THE LD. A.R. THER EFORE PRAYED THAT THE NECESSARY RECTIFICATION TO THE SAID ORDER MAY KINDLY BE PASSED. 3. THE LD. D.R., ON THE OTHER HAND, CANDIDLY AGREED TO THE ARGUMENTS OF THE LD. A.R. MA NO.231/M/2018 (ITA NO.1506/M/2016) MRS. SHALINI SEEKOND 2 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT IN PARA 3.1 ON PAGE NO.19 T HE SENTENCE HAS BEEN LEFT INCOMPLETE(LAST LINE OF THE PARA). THE SAID PARA IS REPRODUCED AS UNDER: 3.1 WE NOTE THAT IN THE AFORESAID ORDER, WHILE ADJ UDICATING THE QUANTUM APPEAL, THE TRIBUNAL HELD THAT THE INCOME OF THE ASSESSEE E ARNED OWN CAPITAL GAINS ON SALE OF IMMOVABLE PROPERTY SITUATED IN SRILANKA, DURING THE RELEVANT PREVIOUS YEAR, SHALL BE CHARGEABLE TO TAX ONLY IN SRILANKA, WHILE THE SA ME SHALL BE INCLUDED IN THE INCOME OF THE ASSESSEE CHARGEABLE TO TAX IN INDIA U NDER THE PROVISIONS OF THE ACT AND THE RELIEF SHALL BE GRANTED IN THE MANNER LAID DOWN IN THE NOTIFICATION 91 OF 2008 DATED 28.08.2008, ISSUED BY THE CENTR AL GOVERNMENT, R.W. DTAA ENTERED INTO BETWEEN INDIA AND SRILANKA AND THE PROVISIONS OF THE ACT TO AVOID DOUBLE TAXATION AND PREVENTION PHYSICAL EVASI ON OF TAXES. THUS, IN ALL FAIRNESS WE REMAND THIS PENALTY APPEAL TO THE FILE OF THE LD . ASSESSING OFFICER TO ADJUDICATE A FRESH, IN ACCORDANCE WITH LAW AS THE SAME WILL BE 5. AFTER PERUSING THE ABOVE PARA, WE OBSERVE THAT T HE SOME RECTIFICATION IS REQUIRED TO COMPLETE THE PARA BY C OMPLETING THE LINE. ACCORDINGLY, WE ARE SUBSTITUTING THE FOLLOWI NG PARA IN PLACE OF PARA 3.1 AS BELOW. 3.1 WE NOTE THAT IN THE AFORESAID ORDER, WHILE ADJ UDICATING THE QUANTUM APPEAL, THE TRIBUNAL HELD THAT THE INCOME OF THE ASSESSEE E ARNED OWN CAPITAL GAINS ON SALE OF IMMOVABLE PROPERTY SITUATED IN SRILANKA, DURING THE RELEVANT PREVIOUS YEAR, SHALL BE CHARGEABLE TO TAX ONLY IN SRILANKA, WHILE THE SA ME SHALL BE INCLUDED IN THE INCOME OF THE ASSESSEE CHARGEABLE TO TAX IN INDIA U NDER THE PROVISIONS OF THE ACT AND THE RELIEF SHALL BE GRANTED IN THE MANNER LAID DOWN IN THE NOTIFICATION 91 OF 2008 DATED 28.08.2008, ISSUED BY THE CENTR AL GOVERNMENT, R.W. DTAA ENTERED INTO BETWEEN INDIA AND SRILANKA AND THE PROVISIONS OF THE ACT TO AVOID DOUBLE TAXATION AND PREVENTION PHYSICAL EVASI ON OF TAXES. THUS, IN ALL FAIRNESS WE REMAND THIS PENALTY APPEAL TO THE FILE OF THE LD . ASSESSING OFFICER TO ADJUDICATE AFRESH, IN ACCORDANCE WITH LAW. FINALLY, THE APPEA L OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 6. WE WOULD LIKE TO MAKE IT CLEAR THAT WITH THE ABOVE SUBSTITUTION, THE RATIO OF THE DECISION WOU LD NOT CHANGE. MA NO.231/M/2018 (ITA NO.1506/M/2016) MRS. SHALINI SEEKOND 3 ACCORDINGLY, THE MISCELLANEOUS APPLICATION OF THE A SSESSEE IS ALLOWED AND ORDER STANDS AMENDED TO THE ABOVE EXTEN T. ORDER PRONOUNCED IN THE OPEN COURT ON 14.07.2020. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 14.07.2020. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.