TaxTMI 
TaxTMI 
TaxTMI 
2013 (8) TMI 872
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....de order dated January 24, 2006. The assessee made an application to the Assessing Officer to submit that the income which should have been taken as salary from India was at Rs. 3,24,45,350 as against Rs. 3,23,23,506 originally offered. Thereafter the Assessing Officer passed the order under section 154 modifying the total income to an amount of Rs. 3,27,55,512. Thereafter, noticing that the Assessing Officer did not examine the status of the assessee in the course of assessment proceedings, the learned Commissioner of Income-tax initiated proceedings under section 263 and on the basis of interpretation of section 6(6) of the Income-tax Act, available at that point of time, held the assessee as resident and accordingly directed the Assessing Officer to consider the global income also. Thereafter, the Assessing Officer completed the order under section 143(3) read with section 263 on December 29, 2008 taking the global salary at Rs. 7,18,15,365, thereby determining the total income at Rs. 10,51,06,290. The assessee again under section 154 brought it to the notice of the Assessing Officer that the global income of Rs. 7,18,15,365 taken as income from the U.S.A. in fact includes the I....
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....nbsp; (ii) The assessee further submitted a statement of computation of income showing that income as shown by him in his return of income as filed in India has been taken into account in the return filed by him under the US law. Since in the U.S.A., the computation of income is done on calendar year basis and whereas in India, the computation is done on the basis of financial year and as such, there is overlapping period for few months, and therefore, the income for overlapping period has been taken on pro rata basis. The assessee has also filed certificate from his employer M/s. Morgan Stanley, showing therein the total payments made to the assessee from April, 2002 to 31st March, 2003. Accordingly, the assessee submits that the Income-tax return as filed by him under the US law includes salary income received in India because under the US law, the global income of the assessee is taxable and as such, the assessee submitted that rectification done by the Assessing Officer by excluding the US salary from the total income of the assessee is correct and there is no mistake in the order which would cause any prejudice to the interests of the Revenue. &n....
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.... placed in the paper book at page 32. It was its submission that the assessee has already paid an amount of Rs. 40,41,172 to the employer by way of refund which was given credit in the subsequent payments. Therefore, to that extent the assessee's contentions were supported by evidence that this amount belongs to the employer company and not to the assessee-employee. 7. The learned Departmental representative however reiterated the observations of the Commissioner of Income-tax for invoking the proceedings under section 263 and findings of the Commissioner of Income-tax. 8. On a query from the Bench as to which of the order of the Assessing Officer, the learned Commissioner of Income-tax invoked proceedings under section 263, it was submitted that proceedings mainly pertained to order under section 154. The learned Commissioner of Income-tax considered two issues. He supported the order of the learned Commissioner of Income-tax. 9. We have considered the issue and examined the details on record. We were surprised to notice that the learned Commissioner of Income-tax-26, in the guise of invoking proceedings under section 263, considered the order under section 143(3) read with....
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....ecord that already refund to the extent of Rs. 40,41,172 was returned to the employer and balance refund, if any arising to the assessee, would also be returned to the employer. Therefore, in our opinion, there is no error in the order and certainly no prejudice to the Revenue. 12. That leaves us, with the main issue whether there is any prejudice caused to the Revenue in the order under section 154 dated February 24, 2009. While admitting that there is a mistake in reducing the amount by the Assessing Officer in that order, which could have been rectified by another 154 order by the authorities, the Commissioner of Income-tax invoked jurisdiction under section 263. In that, the assessee is free to support the order that there is no error or prejudice caused to the Revenue so as to invoke jurisdiction under section 263. As reported by the learned Commissioner of Income-tax in the order under section 263 dated May 31, 2007, the status of the assessee in respect of various assessment years is as per the following chart : Assessment Residential status as per section 6(1) read with section 6(6)(a) of the Act. 1993-94 NR 1994-95 NR 1995-96 NR 1996-97 Not ordinarily resident (....