TaxTMI 
TaxTMI 
2021 (9) TMI 829
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, 1961 which arises out of the assessment order passed under Section 147/144 of the Income Tax Act, 1961 treating the assessee/petitioner as "Resident" for having stayed in India for 182 days during the relevant previous year as per Section 6 (1) (a) of the Act and the Assessing Officer brought the entire salary of the petitioner amount to Rs. 12,26,822/- under the tax net as the global income of the resident as taxable while it is the claim of the petitioner that it is not taxable by taking the ground that during the financial year relevant to assessment year 2004-05 he was on foreign water for a total period of 184 days and his residential status should have been taken as "Non-Resident" and salary received by him should have been treated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....us year. In fact, your employers have also certified to that effect to that effect. Please explain as to why you should not be treated as Resident under Section 6 (1) (a) of the Income Tax Act, 1961. (iii) In the case of an assessee being resident, his global income is liable to tax in India. Showcause as to why the portion of salary claimed exempt on the wrong presumption of being Non-Resident should not be denied and the same be included in the total income. (iv) Furnish details of your global income received/receivable from whatever source which is liable to income tax in India. (v) Produce copies of all bank statements for verification." In response to the aforesaid queries petitioner's representative filed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Commissioner of Income Tax (Appeals) has got ample power to consider the facts, evidence and law and the scope of such Appeal is much much wider and his order is further Appealable before the Tribunal and instead of finding Appeal against the aforesaid assessment order before the Commissioner of Income Tax (Appeals) petitioner had chosen to invoke the provision of revision under Section 264 of the Income Tax Act, 1961, scope of which is much narrower than the Appeal and Commissioner of Income Tax under Section 264 of the Act has the power to pass such order which are an order not prejudicial to the assessee if he thinks fit but Explanation-1 under Section 264 of the Act clearly says that an order by the Principal Commissioner or Commissi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Commissioner/Revisional Authority which learned Advocate for the petitioner has admitted in course of hearing when query was put to him by this Court. In my considered opinion Writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India should not appreciate and scrutinize this piece of evidence particularly when this document/ evidence was never produced/filed either before the Assessing Officer or before the Commissioner in the proceeding under Section 264 of the Income Tax Act, 1961. Petitioner in support of his contention has relied on the following two judgments and a Circular which are as follows: (i) (1977) 2 Supreme Court Cases 777 (State of Kerala -vs- K.T. Shaduli Grocery Dealer Etc.) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ificate issued by his employer in this writ proceeding and wants this Writ Court to appreciate and consider the aforesaid piece of evidence in exercise of its constitutional writ jurisdiction under Article 226 of the Constitution of India while all these facts are totally absent in the aforesaid decisions/judgments upon which petitioner wants to rely and furthermore in addition to these facts, circulars/notifications upon which petitioner wants to rely is in conflict with Section 6 (1) of the Income Tax Act, 1961 and it is settled principle of law that if there is a conflict between a circular or notification and an Act the Act will prevail. In view of the factual and legal discussion made above I am not inclined to interfere with the im....