TaxTMI 
TaxTMI 
2018 (5) TMI 1380
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....d b) below which are apparent on record and also the inconsistency vide c) below: a. The assessee has clearly mentioned in his filed return, his residential status as "NON-RESIDENT INDIAN" and the employer category as "OTHERS" thereby indicating that he was not employed either in public sector or in government ending any scope for deeming his salary income to be earned in India. b. The TDS figure of Rs. 1,35,546/- on the return clearly indicates that it pertains to the interest income, deducted at the rate of 30.9% on the total interest of Rs. 4,38,648. In other words the total TDS figure constitutes the TDS on interest income only thereby establishing that the entire salary income has not suffered from TDS. From this it is clearly apparent that the salary income is exempt from income tax. c. The figure of total income at Rs. 2743360 as mentioned in the return is inconsistent with the entries: a) residential status - NON-RESIDENT INDIAN" b) employer category - "OTHERS" and c) TDS-Rs.135546 which are the entries of facts and it is this inconsistency which has been brought to the kind notice of the learned assessing officer as stipulated u/s.154(2) of the A....
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.... 23.06.2012 by the CPC, Bangalore, wherein the returned income of the assessee was accepted, however, a demand of Rs. 7,17,360/- was raised. Upon demand, the assessee filed rectification u/s.154 of the Act on 03.09.2012 before the CPC and the same was rejected by communication dated 21.09.2012 which reads as under :- "YOUR RECTIFICATION REQUEST COULD NOT BE CONSIDERED AT CPC FOR TECHNICAL REASONS. THE RECTIFICATION RIGHTS, IN YOUR CASE ARE BEING TRANSFERRRD TO YOUR ASSESSING OFFICER. KINDLY CONTACT YOUR ASSESSING OFFICER FOR THE SAME. THE DETAILS OF THE JURISIDCITONAL ASSESSING OFFICER ARE AVIALBEL ON THE WEBSITE htpp://www.incometaxindiaefiling.gov.inUNDER "SERVICES" "KNOW JURISDICTION". Thereafter the assessee filed rectification petition u/s.154(2)(b) of the Act on 06.12.2013 before the Assessing Officer on the ground that there is a mistake in the return of income and the total income as per returned income should be treated as Rs.Nil. The assessee requested for recalculation of his income claiming that he was a non-resident and his income was not taxable in India. However, the AO relying upon the CBDT Circular No.549 dated 31.10.1989 observed that assessed income c....
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....he return of income, a mistake has taken place which could have been rectified under section 154 of the Act. In support of his claim, Id counsel submitted that in order to establish the non-resident status, the assessee has furnished copy of passport, wages statement and the original TDS certificates for the assessment year, which are On record and finds mention in the order u/s.154 of the AO. However, it is not clear from the assessment order whether the assessee has stayed more than 180 days abroad. In the impugned order, the Id CIT(A) has stated that the status shown by the assessee and income offered for taxation has been duly accepted and it cannot be said that a mistake has taken place but that is in reference to the initial processing of return u/s.143(1) of the Act. The order of the Id CIT(A) is not a speaking order nor there is any attempt to verify the NRI status of the assessee vis-a-vis the number of days he had spent abroad before adjudicating on the petition validity u/s.154 of the Act. 9. So far as rectification u/s.154 is concerned, we find from a general perusal of the provisions laid down under section 154(2)(b), which reads that "Subject to other provisi....
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....considered the submissions of ld. DR and perused the record along with the judicial pronouncement. From the observations of the Tribunal made in the order dated 30.11.2015, we found that there is apparent mistake from the record as the Tribunal has restored the matter back to the file of the AO and directed to verify regarding the actual status of the assessee, the number of days spent abroad and dispose of the rectification petition filed by the assessee u/s.154 of the Act. However, as per the Hon'ble Jurisdictional High Court in the case of M/s Orissa Rural Development Corporation Ltd. (2012) 247 CTR 137(Orissa), if there is any mistake in the return filed, the same can only be corrected by way of filling a revised return and not by way of filing a petition before the AO. Accordingly, we are of the substantive view that the order of the Tribunal be recalled and, we direct the Registry to fix the case for hearing afresh in usual course." 9. Now, the appeal is being fixed for fresh hearing before us. 10. Ld. AR before us submitted that income from salary was not considered for computation of tax and income tax computed without including salary, which is being reflected in the....
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....CPC, Bangalore on 03.09.2012 and on the directions of CPC dated 21.09.2012 the assessee filed an application u/s.154(2)(b) of the Act to the AO as the rectification cannot be done by the CPC due to some technical reasons. However, the AO stated that changing the figure cannot be considered as mistake apparent on record and rejected the rectification application on 20.11.2013. On appeal, the CIT(A) confirmed the action of AO, whereas the contention of assessee to rectify the return of income is that salary income was excluded for computation of income and income tax computed without including salary income and therefore, the actual total income of the assessee is Rs. 4,97,448/- after excluding the amount of income of Rs. 22,45,912/- being the salary income in the capacity of a crew member of a foreign ship which was received outside India and is not deemed to have been received by or on his behalf in India and claimed for exemption u/s.5 of the Act. 13. Ld. DR before us relied on the decision of Hon'ble Jurisdictional High Court in the case of Orissa Rural Housing Development Corporation Ltd. Vs. ACIT, (2012) 343 ITR 316, wherein the Hon'ble High Court has held that if there is a....
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.... revised statement of income as has been done by the petitioner. In the instant case, a revised statement of income was filed on 08.12.2008 before the Assessing Officer after commencement of assessment proceedings. If such revised statement of income is accepted, then the very purpose of enacting Section 139(5) under the I.T. Act for filing revised return shall be frustrated and provision of said section becomes redundant. During the relevant time, as the assessee had maintained the accounts on mercantile basis, it was bound to file the returns on that basis. 16. The Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra), held that the Assessing Officer has no power to entertain fresh claim made by the assessee after filing of the original return other than by filing of revised return. 17. Law is well-settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusion alteris", meaning thereby that if a statute provides fo....
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....s entitled to raise additional grounds not merely in terms of legal submissions, but also additional claims not made in the return filed by it. [Para 10] From a consideration of decision of the Supreme Court rendered in the case of Jute Corpn. of India Ltd. v. CIT [1991] 187 ITR 688/[1990] 53 Taxman 85, it is clear that an assessee is entitled to raise not merely additional legal submissions before the appellate authorities, but is also entitled to raise additional claims before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. It cannot, however, be said that they have no jurisdiction to consider the same. They have the jurisdiction to entertain the new claim. They may choose not to exercise their jurisdiction in a given case is another matter. [Para 11] Further the observation of the Supreme Court in the case of Jute Corpn. of India Ltd. (supra ) to the effect 'if the ground so raised could not have been raised at that particular stage when the return was filed or when the assessment order was made....' or 'that the ground became available on account of change of circumstances or law,....
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....ch less established that the omission was deliberate, mala fide or even otherwise. The inference that the omission was inadvertent is, therefore, irresistible. [Para 21] 16. Further, the Hon'ble Bombay High Court in the of Sanchit Software and Solutions (P.) Ltd. Vs Commissioner of Income Tax [2012] 25 taxmann.com 123 (Bom.) held that the revision application filed by the Tax Payer for claiming exemption of Dividend Income inadvertently included as taxable in the Annual Return Form, should be considered. The observations of the Hon' ble High Court are as under :- "Assessing Officer not to take advantage of assessee's ignorance * In any civilized system, the assessee is bound to pay the tax which he liable under the law to the Government. The Government on the other hand is obliged to collect only that amount of tax which is legally payable by an assessee. The entire object of administration of tax is to secure the revenue for the development of the country and not to charge assessee more tax than that which is due and payable by the assessee. It is in aforesaid circumstances that as far back as in 11-4-1955 the Central Board of Direct Tax had issued a circu....
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.... in the matter. There appears to be no good reason and none was placed before us to justify curtailment of the power of the AAC in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the ITO". 18. The Hon'ble Apex Court the case of Goetze (India) Ltd. [2006] 157 Taxman 1 (SC) has held as under :- "4. The decision in question is that the power of the Tribunal under section 254 of the Income-tax Act, 1961, is to entertain for the first time a point of law provided the fact on the basis of which the issue of law can be raised before the Tribunal. The decision does not in any way relate to the power of the Assessing Officer to entertain a claim for deduction otherwise than by filing a revised return. In the circumstances of the case, we dismiss the civil appeal. However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961. There shall be no order as to costs." 19. We rely on the judicial precedents and are of the opinion that there is a legitimate ....
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....will set at naught the plenary powers of Appellate Authorities. [Para 12.5] 23. We find the decision of Hon'ble Madras High Court fortifies that both Assessing and Appellate Authorities are to consider fresh claims even otherwise than by revised return. 24. Similarly the Rajkot Bench of the Tribunal in case of ACIT Vs. Rupam Impex, ITA No.472/RJT/2014 for the assessment year 2008-2009 order dated 21.01.2016, relying on the decision of Hon'ble Bombay High Court in the case of Dattatraya Gopal Bhotte vs. CIT [(1984) 150 ITR 460 (Bom), has held as under :- "7. When this appeal was called out for hearing, Shri Anjaria, learned Departmental Representative, still proceeded with justifying the stand of the Assessing Officer. When we put it to him as to how could the Assessing Officer on one hand agree that the figures set out in his computation of taxable income in the assessment order are wrong, and yet decline to adopt the correct figures, he had nothing much to say except to play reliance on the stand of the Assessing Officer. He said that the Assessing Officer should not be faulted for accepting the claim made by the asseessee. Shri Pandey, learned Commissioner (DR), go....
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....he mistake is not material for the purpose of proceedings under section 154; what is material is that there is a mistake- a mistake which is clear, glaring and which is incapable of two views being taken. The fact that mistake has occurred is beyond doubt. The fact that it is attributed to the error of the assessee does not obliterate the fact of mistake or legal remedies for a mistake having crept in. It is only elementary that the income liable to be taxed has to be worked out in accordance with the law as in force. In this process, it is not open to the Revenue authorities to take advantage of mistakes committed by the assessee. Tax cannot be levied on an assessee at a higher amount or at a higher rate merely because the assessee, under a mistaken belief or due to an error, offered the income for taxation at that amount or that rate. It can only be levied when it is authorised by the law, as is the mandate of Art. 265 of the Constitution of India. A sense of fairplay by the field officers towards the taxpayers is not an act of benevolence by the field officers but it is call of duty in a socially accountable governance. If authority is needed even for justifying this approach to....
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....d by the Assessing Officer, is adopted in practice. It does not end here. When the first appellate authority gives relief in such deserving cases, the agony of the taxpayer is not allowed to come to an end. The appeals against the relief granted by the first appellate authority are filed as a matter of routine. One can understand the young Assessing Officers being overzealous in their approach and making such mistakes, something is needed to be done to ensure that the appeals are not filed before the higher forums as a matter of routine. Only if the field authorities are little more cautious, and stay away from such pedantic approach, such thoughtful initiatives and pragmatic approach of the Government, at the highest level, will earn more goodwill and greater trust at the ground level. As we are dismissing this appeal, and confirming the relief granted by the learned CIT(A), we make it clear that while we are not awarding any costs in this case, we must put in a word of caution here. There has to be proper mechanism to ensure that such frivolous appeals are not filed. However, if that does not happen and these frivolous appeals continue to clog the system, it is only a matter of t....
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....) accrues or arises or is deemed to accrue or arise to him in India during such year; or (c) accrues or arises to him outside India during such year: Provided that, in the case of a person not ordinarily resident in India within the meaning of sub- section (6) of section 6, the income which accrues or arises to him outside India shall not be so included unless it is derived from a business controlled in or a profession set up in India. 27. Ld. DR could not bring out any new material to controvert these submissions of ld. AR. We find the ld. AR referred to the computation of income filed by the assessee at page 2 of the paper book, wherein it was mentioned that the assessee received salary for 184 days outside India and claimed exemption u/s.5(1)(c) of the Act, we are of the substantive opinion that the matter requires further examination and verification of facts by the AO. Accordingly, we restore the disputed issue to the file of AO and we direct the assessee to substantiate its stay in India for claim of exemption and the assessee shall cooperate in submitting the details for early disposal of the case. If the assessee substantiates its stay in India for 181 ....