DCIT, Circle-5(1), Ahmedabad V. Shri Purav K. Bhatt, Ahmedabad

MA 306/AHD/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4830 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 30-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Residential status; Tax effect
• Section: 143(3)

Judgement Text

MA NO. 306/AHD/2018 DCIT VS. PURAV KIRITBHAI BHATT ASSESSMENT YEAR : 2011-12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, VP AND MS. MADHUMITA ROY, JM] MA NO. 306/AHD/2018 ARISING OUT OF ITA NO. 48/AHD/2018 ASSESSMENT YEAR: 2011-12 DY. COMMISSIONER OF INCOME-TAX ................... .... APPLICANT CIRCLE 5(1), AHMEDABAD VS PURAV KIRITBHAI BHATT .................RES PONDENT 15, LALIT PARK SOCIETY, OPP. ISHITA FLAT, NAVRANGPURA, AHMEDABAD - 380009 [PAN : AEHPB 5410 L] APPEARANCES BY MUDIT NAGPAL, FOR THE APPLICANT SUNIL TALATI, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 15.03.2019 DATE OF PRONOUNCEMENT : 11.06.2019 O R D E R PER PRAMOD KUMAR, VP: 1. THIS APPLICATION POINTS OUT THE FOLLOWING MISTAK E IN OUR ORDER DATED 27 TH JULY 2018:- IN THIS CASE, THE ASSESSEE FILED HIS RETURN OF IN COME TAX ON 08.07.2014, SHOWING TOTAL INCOME OF RS. 25,55,950/- FOR A.Y. 20 14-15. ASSESSMENT U/S. 143(3) OF THE ACT, WAS FINALIZED ON 13/10/2016 BY M AKING (1) ADDITION OF RS.28,38,142/- ON ACCOUNT OF FOREIG N INCOME IN US BANK (AS PER W-2, WAGE AND TAX STATEMENT - 2013 AND US- NON RESIDENTIAL ALIEN INCOME TAX RETURN-2013). (2)DENIED FOREIGN TAX CREDIT OF RS. 2,44,967/- FOR TAX PAID IN USA. (3) ADDITION OF RS. 39,60,000/- BEING PEAK ACCOUNT BALANCE OF RS. 26,40.000/- AND 13,20,000/- OF ACCOUNT NO. 15105 AND 15106 WHIC H IS ON ACCOUNT OF SAVING AND RETIREMENT PLAN OPENED BY USA EMPLOYER. MA NO. 306/AHD/2018 DCIT VS. PURAV KIRITBHAI BHATT ASSESSMENT YEAR : 2011-12 PAGE 2 OF 3 AGGRIEVED WITH THE ORDER PASSED, THE ASSESSEE PREFE RRED AN APPEAL BEFORE LD. CIT(A)-5. THE LD. CIT(A)-5 VIDE ORDER NO. DCIT CIRC LE-5(1)/405/2016-17 DATED 20/10/2017, THE APPEAL OF THE ASSESSEE WAS PA RTLY ALLOWED GRANTING RELIEF BY DELETING ADDITION MADE OF RS.39,60,000/- AND CONFIRMED THE ADDITION OF RS. 28,38,142/- WITH DIRECTION TO ALLOW, CREDIT OF TAX PAID IN USA OF RS.2,44,967/- CLAIMED BY ASSESSEE. THE ORDER OF THE LD.CIT(A)-5 WAS NOT ACCEPTED AND S ECOND APPEAL AGAINST THE CIT (A)'S ORDER HAS BEEN FILED BEFORE I.T.A.T. NOW, THE HON'BLE ITAT VIDE COMMON ORDER DATED 27/07 /2018 IN IT(SS)A NO. 427/AHD/2017 DISMISSED THE DEPARTMENT'S APPEAL AS W ITHDRAWN. AS THE APPEALS FILED BY THE REVENUE ARE FOUND TO BE NON-MA INTAINABLE IN VIEW OF THE CBDT CIRCULAR NO. 3 DATED 11/07/2018, DUE TO TAX EF FECT INVOLVED IS LESS THAN RS. 20,00,000/-. THE INCOME OF THE ASSESSEE FOR F.Y. 2013-14 I.E. IN COME RECEIVED IN US $47,222.83 IS BROUGHT TO THE TAX IN INDIA AS ASSESS EE WAS RESIDENT OF INDIA DURING F.Y. 2013-14. AS PER THE PASSPORT DETAILS, S UBMITTED BY THE ASSESSEE VIDE HIS SUBMISSION DATED 04/07/2016, ASSESSEE STAY ED IN INDIA FOR MORE THAN 182 DAYS DURING F.Y. 2013-14 AND THE INCOME IS SHOW N IN FA-SCHEDULE OF ITR. THEREFORE, THE CASE IS FALLS UNDER THE EXCEPTI ON OF PARA -10(D) OF CIRCULAR NO. 3/2018 DATED 11/07/2018 AND HENCE MISCELLANEOUS APPLICATION IS REQUIRED TO BE FILED BEFORE THE HON'BLE ITAT. IN VIEW OF THE ABOVE THOUGH THE TAX EFFECT IS BELOW THE PRESCRIBED LIMIT I.E. RS.12,46,707/-. HOWEVER, LOOKING TO THE MERIT OF TH E CASE THE APPEAL MAY KINDLY BE READJUDICATED. IN VIEW OF THE ABOVE THE M ISCELLANEOUS APPLICATION IS BEING FILED TO DRAW ATTENTION OF THE HON'BLE ITAT I N THE ABOVE MATTER. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 3. WE FIND THAT THE EXCEPTION CLAUSE SET OUT IN CBD T CIRCULAR DATED 11 TH JULY 2018 STATES THAT WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN A SSETS/BANK ACCOUNTS , ADVERSE JUDGMENTS SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THE FACT THAT THE TAX EFFECT INVOLVED IS LESS THAN THE SPECIFIED MONETARY LIMITS. IN THIS CASE, HOWEVER, IT IS NOT EVEN THE STAND OF THE REVE NUE THAT ANY FOREIGN ASSET OR BANK ACCOUNT IS INVOLVED, EVEN THOUGH THE INCOME WAS EAR NED ABROAD. AS A MATTER OF FACT, THE RELATED BANK ACCOUNT WAS DULY REFLECTED I N THE TAX RETURN. 4. IN VIEW OF THE ABOVE DISCUSSION, IN OUR CONSIDER ED VIEW, GRIEVANCE OF THE APPLICANT IS MISCONCEIVED. THERE IS NO UNDISCLOSED FOREIGN ASSET/BANK ACCOUNT MA NO. 306/AHD/2018 DCIT VS. PURAV KIRITBHAI BHATT ASSESSMENT YEAR : 2011-12 PAGE 3 OF 3 INVOLVED IN THIS CASE. THE CASE IS NOT HIT BY CLAUS E 10(D) EXCEPTION. WE, THEREFORE, SEE NO LEGALLY SUSTAINABLE MERITS IN THE APPLICATIO N. THE APPLICATION IS REJECTED. 5. IN THE RESULT, APPLICATION IS DISMISSED. PRONOU NCED IN THE OPEN COURT TODAY ON THE 11 TH DAY OF JUNE, 2019 SD/- SD/- MS. MADHUMITA ROY PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESI DENT) AHMEDABAD, DATED THE 11 TH DAY OF JUNE, 2019 **BT COPIES TO: (1) THE APPLICANT (2) THE RESPON DENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION ORDER PREPARED AS PER 2 PAGES M ANUSCRIPTS OF HONBLE VP.(ATTACHED)... ATTACHED....11.06.2019.... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 11.06.2019..... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: .11.06.2019.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: .. 11.06.2019..... 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . . 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......