TaxTMI 
TaxTMI 
2015 (9) TMI 1168
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....he Revenue. 3. The appeal is time barred by 723 days. The assessee has filed an affidavit dated 18.10.2012 wherein he has explained the delay in filing the appeal as under:- "BEFORE THE NOTARY PUBLIC AT KOLKATA AFFIDAVIT I, SRI ANIKESH BOSE, Son of Late Santosh Kumar Bose, aged about 41 years, residing at 95, Purbachal, Rahara, District 24-Parganas (North), Pin 700 118, by Caste Hindu, by occupation service, do hereby solemnly affirm and declare as follows:- 1. That the deponent received the Appeal Order No 451/CIT(A)-XIV/08-09 dated 22.03.2010 for the Asst.. Year 2006-07, due to lost of the said order he could not file the appeal to Hon'ble Income Tax Appellate tribunal within the prescribed time limit. 2. That the deponent was freque....
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.... affidavit filed by the assessee, which has been reproduced above and also keeping in view the submissions of the ld. counsel for the assessee that the issue raised in the present appeal by the assessee is squarely covered by the decision of this Tribunal dated 30th September, 2011 in ITA No. 915/KOL/2010 for the AY 2006-07 in the case of ITO, Ward-27(4), Kolkata -vs.- Shri Saptarshi Ghosh, Kolkata and others, in order to impart substantial justice to assessee, we condone the delay in filing the present appeal of assessee and admit the appeal. 6. Brief facts of the case are that the assessee filed his return of income declaring total income of Rs. 6,72,670/-. The assessee in his return claimed that 'living allowance' paid while on tour by ....
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....ay of the appellant in USA, option of the appellant to be accompanied by his spouse, expense on travel of the spouse being borne by the employer and choice of not going for deputation available to be appellant. 4. That, on facts as well as on law, the Learned CIT(A) is not justified in considering 'Living Allowance' as normal salary merely because that the same was paid on monthly basis and the appellant was not required to submit the supporting bills/vouchers to prove the spending of Living Allowance, although the details of expenses met out of such living allowance were produced to him in course of hearing of the appeal. 5. That, on facts as well as on law, the Learned CIT(A) has erred in ignoring various circulars of the CBDT....
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.....3 that during the period of deputation, the employee will continue to receive his salary and benefits in India. This clearly shows that place of posting had not changed, which is basic ingredient for deciding whether a person had been transferred or was on tour. Ld. CIT(Appeals) has wrongly concluded that headquarters had been shifted from Kolkata to USA. Ld. CIT(Appeals) has also pointed out that employees had a choice to say no also. In the present case, the employees were to be sent to USA and, therefore, their choice had to be taken before sending them abroad. Since the assessees were to be sent abroad, they had to obtain Visa also for that purpose. In that regard, all the specific requirements had to be fulfilled by the employer. But ....
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....ith regard to actual incurring of expenditure. In this regard, we find that the issue is squarely covered by the decision of ITAT, Mumbai dated 21.04.2006 in ITA Nos. 5561 & 5570/Mum./2002 for the assessment years 1997-98 and 1998-99 in the case of Madanlal Mohanlal Narang -vs.- ACIT(supra), wherein it has been held that "it is not open to the revenue to call for the details of expenses actually incurred unless the specific allowance are disproportionately high compared to the salary received by him or unreasonable with reference to the nature of the duties performed by the assessee". Further, the assessees had submitted that FBT must have been paid by the employer. However, as noted earlier, employer has not paid FBT. In our opinion, the ....