TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 606
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....peals) has erred in holding that the appellate authorities have powers to entertain fresh claim only if the assessment order is passed u/s. 143(3) and not if the return is processed u/s. 143(1). 3. On the facts and in the circumstances of the case and in law, the learned CIT (Appeals) has erred in holding that since the A.O. in the present case has accepted the income returned by the appellant under the provisions of sec. 143(1) which is with the provisions of law, there is no mistake in the order of the A.O. which could be rectified and there is no ground to defer from the stand taken by the A.O. 4. The appellant prays that the learned ITO be directed to allow appropriate relief in terms of DTAA between India and Singapore as claimed by the appellant in the rectification application and accordingly, the A.O. be directed to - a) tax the Interest Income of Rs. 2,17,22,013/- @ 15% only instead of @ 30.9% actually charged to the appellant, in terms of Article 11 of DTAA between India and Singapore and b) exclude Short Term Capital Gains of Rs. 12,84,598/- from the Computation of Taxable Income in terms of Article 13 of DTAA between India and Singapore and delete tax charged oi....
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....essee claimed in the petition that it was mistake apparent from record since income not liable to tax was made taxable on the part of mistake committed by the assessee which was perpetuated by the AO. In support of its claim, the assessee enclosed 'Tax Residency Certificate' of Singapore. It was further submitted by the assessee that at the time of processing of the Revised Return, the assessment proceedings of immediately preceding year i.e. A.Y. 2009-10 were also going on before the AO and all these facts with regard to residency of the assessee in Singapore as well as Tax Residency Certificate was available before the AO and therefore, the AO was bound to consider the same under the law as to assess income of assessee in accordance with law. She relied upon the judgment of Hon'ble Kerala High Court in the case of Upasana Hospital & Nursing Home vs. Commissioner of Income Tax-(2002) 253 ITR 507 (Ker) for the proposition that an error apparent on the face of the 'record' cannot be said to be only from the 'record' of one particular assessment, but from the entire 'record' of the assessee relating to all the assessment years. On the basis of this judgment, it was requested by the L....
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....fully gone through the arguments made by both the parties before us. Though, it is true and we agree with the Ld. DR on this point that the claim of the assessee can be and should be allowed in accordance with provisions of law only, but it is also true that the tax can be collected from the assessee strictly within the four corners of law only. If the assessee is able to show in a bona fide manner at any stage that a particular item of receipts is not liable to be taxed as income in its hands, then, an effort should be made in all fairness that tax upon the same is not recovered from the assessee, so long as nothing in-genuine or mala fide is found on the part of the assessee and so long as the conduct of the assessee is found to be reasonable and fair. On the basis of facts brought before us, it can be noted that during the past few years, the assessee had been residing abroad i.e. in Singapore. Under these circumstances, it is quite natural that assessee would have been dependent upon its tax consultant here in India. The income tax law, especially in our country, has been constantly evolving resulting into numerous amendments time to time. The complexities in the business envir....
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....and, admittedly, there was an omission on the part of the assessee in making claim in the return of income with regard to benefits accrued to the assessee on the basis of DTAA between India-Singapore. Ld. Counsel has drew our attention upon the provisions of Article 265 of the Constitution of India providing that no tax shall be levied or collected except by authority of law. Similarly, reliance has been placed on circular no.14 dated 11.04.1955 issued by the Central Board of Revenue (Now central Board of Direct Taxes) clarifying as under: "3. Officers of the Department must not take advantage of the ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing relief and in this regard the officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the Department, for, it would inspire confidence in him that he may be sure of getting a square deal from the Department. Although, therefore, the responsibility for claiming refunds and r....
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....thin six weeks from the receipt of their order. 3.9. Our attention was also drawn on the judgment of Hon'ble Gujarat High Court in the case S.R. Koshti v. CIT (supra) wherein the facts were that the said assessee had made a claim for exemption u/s. 10(10C) of the I.T. Act by filing a Revised Return of Income, which was allowed by the AO by passing an Order u/s 154 of the Act, but said Order was not approved by the Addl. CIT and the CIT took action u/s. 263 to revise the Order passed by the AO u/s 154 of the Act and also rejected the application for revision made by the assessee u/s 264 of the Act. In this case, the High Court made the following observations: "The authorities under the Act are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or on not being properly instructed, is over-assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected. This Court, in an unreported decision in case of Vinay Chandulal Satia v. Shri N.O. Parekh., the Commissioner of income Tax, Special Civil Application No. 622/1981, rendered on....
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....stances, we find it appropriate that requisite facts in this regard should be verified by the lower authorities in the interest of justice and fair play. Similarly, with regard to taxation of capital gain it was brought to our notice by the Ld. Counsel of the assessee that there was an amendment in the DTAA and a protocol amending the agreement was appended as Annexure -B to the original agreement on 29th June 2005. Before the amendment of DTAA, Article 13 read as under: "ARTICLE 13: CAPITAL GAINS - 1. Gains derived by a resident of a Contracting State from the alienation of immovable property, referred to in Article 6, and situated in the other Contracting State may be taxed in that other State. 2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or together with the whole....