TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 1327
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....8 to decide the following substantial questions of law:- "i. Whether the subject income could be taken to have accrued in India only for the reason that it was shown in the balance sheet of the assessee? ii. Whether the learned tribunal ought to have allowed the rectification application of the appellant for the assessment year 2012-13 based on the CBDT circular no.13 of 2017?" We have heard Mr. Sukumar Bhattacharyya for the revenue and Mr. Tilak Mitra, learned Advocate for respondent. The legal issue involved in the instant case is whether the income of the assessee could have been taken to have accrued in India only because it was mistakenly shown by the assessee to have accrued in India while filing the return of income on 11th January, 2013. Even in the said return the name of the employer of the assessee was shown as M/s. MSC Ship Management Hongkong Limited. Therefore, admittedly the assessee was employed outside the Indian Territory. The return was processed and an intimation under Section 143(1) dated 2nd March, 2013 was issued computing the tax liability at Rs.4,40,070/-. Thereafter, the assessee filed the application for rectification under Section 154 of the Act. T....
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.... rejected the appeal on the ground that the issue pertaining to the assessee's claim for exemption on account of salary income stated to be earned outside India is a debatable issue and, therefore, the CIT(A) was right in rejecting the appeal. Thereafter, the assessee preferred another application for rectification under Section 154 of the Act before the learned Tribunal which was dismissed by order dated 5th January, 2018. Thus, challenging the main order passed by the Tribunal as well as the order passed in Miscellaneous Appeal, the present appeal has been filed. After we have elaborately heard the learned advocates for the parties, we are of the considered view that the decision arrived at by the learned Tribunal and the CIT(A) was absolutely perverse. On the date when the learned Tribunal rendered the initial decision dismissing the appeal, i.e., on 27th September, 2017, there was a binding decision of this Court in the case of Utanka Roy Vs. Director of Income Tax, International Taxation Transfer Pricing, Kolkata & Ors. in W.P. No. 369 of 2014. The learned Tribunal could not have ignored the said decision and the same having been ignored that would be error which is apparent ....
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....he relevant provisions of the Income Tax Act for the purpose of determining the true figure of the assessee's taxable income and consequential tax liability and in the event the assessee fails to claim benefit or set off, it cannot relieve the Income Tax Officer of his duty to apply the benefits of an appropriate case. The Assessing Officer of CIT(A) as well as the learned Tribunal has lost sight of the directions issued by the Hon'ble Supreme Court in Mahalaxmi Sugar Mills Co. Ltd. and the Assessing Officer and the CIT(A) have ignored the circular issued by the Board dated 11th April, 1995 and perversity is in the face of the order passed by the Assessing Officer as well as the DCIT. The decision of the Hon'ble Division Bench of this Court in the case of Smt. Sumana Bandyopadhyay & Anr. Vs. The Deputy Director of Income Tax, (International Taxation) 3(1) in ITAT 374 of 2016 dated 13th July, 2017 will squarely apply to the facts of the present case and in favour of the assessee. Identical issue was the substantial question of law which was decided in the appeal. It would be beneficial to refer to the operative portion of the said decision:- "3. We had admitted the appeal on 11th ....
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.... 15, 2016. If such was the situation, could the Tribunal have refused to entertain the application filed for rectification under Section 154 of the Act. This issue has been decided by the Hon'ble Supreme Court in the case of ACIT vs. Sourashtra Kutch Stock Exchange reported in 2008 (305) ITR 227 wherein the Hon'ble Supreme Court has held that an application for rectification was maintainable in such factual situation. The relevant paragraphs are quoted hereinbelow:- "40. The core issue, therefore, is whether non-consideration of a decision of jurisdictional court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified under section 254(2). 41. A similar question came up for consideration before the High Court of Gujarat in Suhrid Geigy Ltd. v. Commissioner of Surtax [1999] 237 ITR 834. It was held by the Division Bench of the High Court that if the point is covered by a decision of the jurisdictional court rendered prior or ....