ZUBIN JEHANBUX GANDEVIA ,MUMBAI V. INCOME TAX OFFICER INT TAX WARD 2(3)(1), MUMBAI

ITA 1789/MUM/2025

AI Insights

The case involves Jubin Jehnbux Gandevia, a tax resident of Singapore, who appealed against the final assessment order passed by the Income Tax Officer, Int. Tax Ward 2(3)(1), Mumbai. The assessment order, which was based on the recommendations of the Commissioner of Income Tax (Appeals) - Dispute Resolution Panel (CIT(DRP)), included discrepancies in the taxation of LTCG, STCG, and dividend income, which the assessee argued were incorrectly taxed. The Tribunal found that the assessee had validly raised these issues during the assessment proceedings and had the right to additional grounds before the DRP, thus restoring the matter to the Ld. AO for re-evaluation.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 774884 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2022-2023
• Appeal Filed On: 17-03-2025
• Other Referred Cases: Lahmeyer Holding GMBH vs. Deputy Director of Income-tax, Circle 3(2)
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KRISHNA KUMAR
• Assessee Lawyers: GUNJAN KAKKAD
• Keywords: Additional evidence; Revised return; Capital Gains; Double taxation relief
• Section: 143(3); 6; 5(2)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “I”, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER AND SHRI ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A No.1789/Mum/2025 (Assessment Year: 2022-23) Jubin Jehnbux Gandevia 12, Orion, 95, Bhulabhai Desai Road Oomer Park, Mumbai- 400 026 PAN: ADCPG5510C vs The Income Tax Officer Int. Tax Ward-2(3)(1), Mumbai. Kautilya Bhavan, C-41 to C-43, G Block, Bandra Kurla Complex, Bandra (East), Mumbai-400 051 APPELLANT RESPONDENT Assessee by : Shri Gunjan Kakkad Respondent by : Shri Krishna Kumar (SR DR) Date of hearing : 02/09/2025 Date of pronouncement : 04/09/2025 O R D E R Per Anikesh Banerjee (JM): This appeal of the assessee is directed against the final assessment order of the passed by the Learned Income-tax Officer, Int. Tax Ward 2(3)(1), Mumbai, (in short, ‘Ld.AO’) order passed under section 143(3) read with section 144C(13) of the Income-tax Act, 1961 (in short, ‘the Act’), date of order 22/01/2025., for Assessment Year 2022-23. The said order was originated by the recommendation Printed from counselvise.com 2 ITA No.1789 /Mum/2025 Zubin Jehanbux Gndevia of the Learned CIT(DRP)-2, Mumbai-3 [for brevity, ‘Ld. DRP’] order passed under section 144C(5) of the Act, date of order 02/12/2024. 2. The brief facts of the case are that the assesse is a tax resident of Singapore. The certificate of residence issued for calendar years 2021, 2022 by the Inland Revenue Authorities of Singapore was submitted before the Ld.AO. The assessee filed the return of income for the impugned assessment year declaring total income at Rs.4,81,74,660/-. The case was selected for scrutiny through CASS. The Ld.AO issued the draft assessment order u/s 144C(1) of the Act and proposing assessment of total income at Rs.4,84,61,440/-. The only variation made was of Rs. 2,86,776/- on account not offering rental income for the full financial year. During the assessment proceedings, before finalization of draft assessment order, the assesse claimed that the assessee wrongly declared the non taxable long term capital gain (LTCG) and short-term capital gain (STCG) in the return of income and paid the tax. The assesse also wrongly offered dividend income to tax at 20% as against 15% as per Article 10 of India – Singapore DTAA. The assesse by a letter dated 15/03/2024 claimed the said exemption and tax relief before the Ld.AO. As the assessee had not filed any revised return due to lapse of the due date. But the Ld.AO had not considered the assessee’s claim and passed the order considering the variations made in respect of rental income amount to R.2,86,776/- whereas the assesse claimed that assessee is eligible for refund of Rs.41,57,260/- arising in line with the relief claimed by the assessee during the course of assessment proceedings. The issue was then carried before the Ld. DRP. The Ld. DRP had considered that as the issue was not claimed in the return of income or in the revised return; so, the Ld.AO was not eligible to allow the said relief to the assessee at the assessment stage. So, Printed from counselvise.com 3 ITA No.1789 /Mum/2025 Zubin Jehanbux Gndevia the Ld.DRP rejected the assessee’s claim and upheld the impugned draft assessment order. Thereafter, the final assessment order was passed as per the recommendation of the Ld.DRP. 3. The Ld.AR filed a paper book containing pages 1 to 172, which is placed on the record. The Ld.AR invited our attention to APB pages 48 to 148 where the assessee claimed the relief and the mistake was made in treating the LTCG & STCG as taxable income. The Ld.AR further stated that the issue was agitated before the DRP and the relevant paragraph 5.2 is extracted below:- “5.2. Arguments of the Applicant: Facts as submitted to the Assessing Officer Re.: Proposal to reject relief claimed by the Assessee and non-consideration of the India - Singapore Double Taxation Avoidance Agreement For the Financial Year 2021-22 i.e. Assessment Year 2022-23, the Assessee was a tax resident of Singapore. The Certificate of Residence' issued for calendar year 2021 and 2022 issued by the Inland Revenue Authority of Singapore was submitted with the Learned AO. For the said period, the Assessee was a non-resident of Indie per the provisions of S. 6 of the Indian Income Tax Act, 1961 (The Act) and India-Singapore DTAA At the time of filing the income tax return, the Assessee has erroneously disclosed certain income Le long-term capital gain and short-term capital gain at the time of filling the income-tax return for AY 2022-23, which was not taxable in India in line with the India-Singapore DTAA The Assessee also erroneously offered dividend income to tax at 20% as against 15% as per Article 10 of the India Singapore DTAA. It is hereby submitted that per the provisions of section 5(2) of the Act, non-resident individuals are taxable in India in respect of Printed from counselvise.com 4 ITA No.1789 /Mum/2025 Zubin Jehanbux Gndevia a. Income received or deemed to be received in India and b. Income accruing or arising in India or deemed to accrue or arise in India. Further per provisions of S. 90(2) of the Act where India has entered into DTAA applicable to such non-resident, the provisions of the Act or DTAA whichever is more beneficial shall be applicable. It should be noted that for the purpose of availing treaty benefit, one shall be required to provide, amongst other documents, a valid Tax Residency Certificate (TRC) for the period in which the treaty benefit is being claimed The Assessee has a valid TRC for calendar year 2021 as well as 2022. The Assessee also furnished the other document required for availing the treaty benefit Le. Form 10F for Financial Year 2021-22 i.e. Assessment Year 2022-23 with the Learned AO. Excess income offered to tax erroneously in the income-tax return.” 4. The Ld.DR argued and relied on the order of the revenue authorities. 5. We have heard the rival submissions and perused the documents available on record. The assessee is a tax resident of Singapore and has duly submitted a certificate of tax residency before the Ld. AO. It is an admitted fact that, while filing the return of income for the impugned assessment year, the assessee inadvertently disclosed certain items of income, namely, Long-Term Capital Gains (LTCG) and Short-Term Capital Gains (STCG). Furthermore, the assessee had erroneously offered dividend income to tax at 20% instead of 15%. Before completion of the draft assessment order, the assessee filed a claim and specifically requested rectification of the mistake in the return of income. This claim, seeking relief of tax, was made before the Ld. AO by way of a letter dated 15/03/2024. The assessee also Printed from counselvise.com 5 ITA No.1789 /Mum/2025 Zubin Jehanbux Gndevia raised this issue before the Ld. DRP. However, the Ld. DRP brushed aside the claim holding that it had no jurisdiction to admit additional evidence or additional claims. In this context, the Ld. AR placed reliance upon Notification No. 84/2009 [S.O. 2958(E)/F.No.142/22/2009-TPL], dated 20-11-2009, wherein Clause 7(4) specifically provides as under: “Hearing of objections. 7. (1) For the purpose of hearing of objections, the panel may hold its sittings at its headquarters or at such other place or places as it may deem proper. (2) On the date fixed for hearing, if an authorised representative appears on behalf of eligible assessee, he shall file the authorisation letter before the commencement of the hearing. (3) The panel may consider the application for filing additional affidavit and may either allow such application or reject it. (4) The eligible assessee may, with the permission of the panel, urge any additional ground which has not been set forth in the objections.” Thus, it is evident that the assessee has the right to raise additional grounds before the DRP. In support of this contention, reliance was also placed on the judgment of the Hon’ble Delhi High Court in Lahmeyer Holding GMBH vs. Deputy Director of Income-tax, Circle 3(2) (2015) 59 taxmann.com 336 (Delhi), wherein it was held that, in terms of the Explanation to section 144C(8), the DRP is empowered to examine issues arising out of the assessment proceedings even if such issues do not form part of the variations proposed by the Ld. AO. On careful consideration, we find that the assessee had made its claim both before the Ld. AO and before the Ld. DRP. Therefore, in the interest of justice, we restore the matter to the file of the Ld. AO with a direction to verify the assessee’s claim and grant the relief, if found admissible, in accordance with law. Printed from counselvise.com 6 ITA No.1789 /Mum/2025 Zubin Jehanbux Gndevia 6. In the result, the appeal of the assessee bearing ITA No.1789/Mum/2025 is allowed for statistical purpose. Order pronounced in the open court on 04th day of September 2025. Sd/- sd/- (NARENDRA KUMAR BILLAIYA) (ANIKESH BANERJEE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, िदनांक/Dated: 04/09/2025 Pavanan Copy of the Order forwarded to: 1. अपीलाथ /The Appellant , 2. ितवादी/ The Respondent. 3. आयकर आयु\u0014 CIT 4. िवभागीय ितिनिध, आय.अपी.अिध., मुंबई/DR, ITAT, JODHPUR 5. गाड\u0019 फाइल/Guard file. BY ORDER, //True Copy// (Asstt. Registrar), ITAT, MUMBAI Printed from counselvise.com "