DCIT CEN CIR 2, V. M/S. AISHWARYA RAI,

MA 80/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6697 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2000-2001
• Appeal Filed On: 10-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRAVAN KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI T. R. SOOD, AM MA NO.80/MUM/2011 ARISING OUT OF ITA NO.1159/MUM/2004 ASSESSMENT YEAR : 2000-01 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, OLD CGO ANNEXE, M.K. ROAD, MUMBAI-400 020 VS. MS. AISHWARYA RAI 12, LA-MER BUILDING, MISTRI PARK, KHANDESHWAR TEMPLE ROAD, BANDRA (W), MUMBAI-400 050 PAN NO: ADLPR3537P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHRAVAN KUMAR RESPONDENT BY : NONE ORDER PER T.R. SOOD (AM) : THIS MISCELLANEOUS APPLICATION FILED BY THE REVEN UE IS DIRECTED AGAINST THE ORDER DATED 31.05.2007 PASSED BY THE TR IBUNAL IN ITA NOS.1159 & 2170/MUM/2004 FOR THE ASSESSMENT YEAR 2000-01. 2. IN THIS CASE AN ADJOURNMENT APPLICATION HAS BEEN MOVED ON BEHALF OF THE ASSESSEE STATING THAT THE FIRM OF C.A. COULD NO T BRIEF THE COUNSEL. IT WAS NOTICED THAT ON EARLIER ACCOUNT ALSO WHEN MATTER CA ME UP FOR HEARING THEN IT WAS STATED THAT CONCERNED C.A. IS OUT OF STATION. A S NO ONE IS PRESENT ON BEHALF OF THE ASSESSEE, THIS ADJOURNMENT WAS REJECT ED. 2 3. THE REVENUE HAS SOUGHT THE RECALLING OF ORDER OF TRIBUNAL IN ITA NO.1159/M/2009. 4. THE LD. DR RELIED ON THE MISCELLANEOUS APPLICATI ON. 5. AFTER CONSIDERING THE SUBMISSION OF THE LD. DR A ND THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE TRIBUNAL HAS D ECIDED THE ISSUE REGARDING ONLY NET PROFESSIONAL INCOME IS TAXABLE VIDE PARA 1 3 OF ITS ORDER, AFTER ADMITTING THE ADDITIONAL GROUND, WE FURTHER FOUND T HAT TRIBUNAL HAS PASSED ITS ORDER BY RELYING ON THE CASE LAWS WHICH ARE AS FOLLOWS:- CIT VS. TULSIDAS KILACHAND, 210 ITR 844 (BOM) CIT VS. YAWAR RASHID, 218 ITR 699 (MP) CIT VS. NADIR RASHID, 227 ITR 727 (MP) 6. NOW THE REVENUE HAS SOUGHT RECTIFICATION BY CONT ENDING THAT THE DECISION OF TRIBUNAL OF MUMBAI BENCH IN CASE OF K.E .C INTERNATIONAL LTD. VS. ITO, 63 ITD 278 WAS NOT CONSIDERED BY THE TRIBUNAL. WE FIND THAT THE HON'BLE MEMBERS WHO HAD HEARD THE MATTER ARE NOW NO T IN MUMBAI OFFICE BECAUSE SHRI K.P.T. THANGAL, HON'BLE VICE PRESIDENT HAS ALREADY RETIRED AND SHRI A. K. GARODIA, A.M. HAS BEEN TRANSFERRED OUT O F MUMBAI BENCH. IT IS VERY DIFFICULT TO FIND OUT WHETHER THIS DECISION WA S CITED BEFORE THE BENCH OR NOT. IN ANY CASE, THE TRIBUNAL HAD DECIDED THE ISSU E ON THE BASIS OF THREE HIGH COURTS DECISIONS WHICH HAVE BEEN STATED ABOVE . ONE OF THE DECISION HAS BEEN RENDERED BY HON'BLE BOMBAY OF HIGH COURT. IN ALL THESE THREE DECISIONS, IT HAD CLEARLY BEEN HELD THAT INCOME FRO M ABROAD IN INDIA CAN BE TAXED ONLY ON NETT OF THE TAX WHICH IS PAID OUTSIDE INDIA. NO DOUBT, DIFFERENT VIEW WAS TAKEN IN CASE OF K.E.C INTERNATIONAL LTD. (SUPRA) AND THAT DECISION WAS RENDERED ON 21 ST APRIL, 1997, BUT STRANGELY IN THIS DECISION OF TRI BUNAL, THE DECISION OF THE THREE HIGH COURTS WERE NOT CONS IDERED IN THAT DECISION. THEREFORE, IN OUR VIEW WHEN TRIBUNAL HAS FOLLOWED T HE DECISION OF HON'BLE HIGH COURT THEN IT CANNOT BE SAID THAT ORDER IS ERR ONEOUS OR ANY ERROR HAS 3 CREPT INTO THE ORDER OF THE TRIBUNAL. FURTHER, THE REVENUE HAS ALSO RELIED ON THE DECISION OF ITAT, MUMBAI IN CASE OF DCIT VS. TA TA SONS LTD. IN ITA NO.4776/MUM/2004 FOR ASSESSMENT YEAR 2000-01 WHICH IS STATED TO HAVE BEEN RENDERED ON 24.11.2010. THEREFORE, CLEARLY THI S DECISION WAS NOT AVAILABLE AT THE TIME WHEN ORIGINAL ORDER WAS RENDE RED ON 31.05.2007. THEREFORE, IN OUR VIEW, THERE IS NO ERROR APPARENT ON THE ORDER OF THE TRIBUNAL AND ACCORDINGLY WE REJECT THE MISCELLANEOUS APPLICA TION FILED BY THE REVENUE. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED ON THIS 15 TH DAY OF JUNE, 2011. SD/- SD/- (D. MANMOHAN) (T. R. SOO D) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DT: 15/06/2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, E - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI