SMT. GUNJAHALLI RENUKA,BELLARY vs. THE ACIT, CENTRAL CIRCLE - 1(3), BANGALORE

The assessee has raised the following grounds of appeal: - “1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence probabilities, facts and circumstances of the appellant's case.

The learned CIT[A] ought to have appreciated that the correct residential status of the appellant was non-resident and hence, the learned CIT[A] had erred in holding that the appellant has to be assessed on the income as reported in the return of income, which return filed was contrary to the provisions of the Income-tax Act and hence, ought not to have been accepted under the facts and in the circumstances of the appellant's case.

Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies herself liable to be charged to interest u/s. 234-A, 234-B and 234-C of the Act, which under the facts and in the circumstances of the appellant's case and the levy deserves to be cancelled.

For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.”

The facts of the case are that the assessee came in appeal before this Tribunal. The Tribunal vide order dated 03.07.2019 in remanded the issue to the file of the CIT(A) with the following observations: - “6.3.1 I have heard the rival contentions and perused and carefully considered the material on record; including the judicial pronouncements cited. The facts of the case, as emerge from the record, are that in the course of assessment proceedings the assessee Smt. Gunjahalli Renuka by way of revised computation raised an additional claim for relief under section 90/91 of the Act or under DTAA in respect of salary income earned in the status of an NRI in the year under consideration. The AO ignored the aforesaid claim put forth by the assessee. 6.3.2 On a perusal of the impugned order, I find that the CIT(A) rejected considering the assessee's claim on this issue without dealing with the grounds raised on the merits of the issue. The CIT(A) dismissed the assessee's claim and upheld the action of the AO by relying on the decision of the Hon'ble Apex Court in the case of Goetze (India) Ltd., (Supra). In my considered view, this decision of the Hon'ble Apex Court in the case of Goetze (India) Ltd., (Supra) does not place fetters on the appellate authorities to entertain fresh claims put forth by the assessee on issues which are a part of record, and/or are material for the purpose of assessing the correct tax liability of the assessee in accordance with law. I am therefore, of the considered opinion that it was incumbent for the CIT(A) to have examined the assessee's additional claim for relief under section 90 of the Act or under DTAA in view of the grounds raised before him and particularly when the relevant material is part of the records of assessment as this claim admittedly was put forth before the AO in assessment proceedings. In coming to this view, support is drawn from the ratio laid down in the decision of the Hon'ble Apex Court in the case of NTPC Ltd., (229 ITR 383); of the Hon'ble Karnataka High Court in the case of CIT Vs. Motor Industries Co. Ltd., (229 ITR 137) and of the co- ordinate bench of this Tribunal in the case of CPG Consultants India Pvt. Ltd., Vs. DCIT (ITA No.1596/Bang/2016 dt. 31/5/2017). In this factual and legal matrix of the case, as discussed above, I set aside the impugned order of the CIT(A) on this issue and after admitting the grounds raised by the assessee on its claim for being granted relief under section 90 of the Act or under DTAA in respect of salary of Rs.7,20,892/- earned as NRI, restore the matter to the file of the CIT(A) for examination, verification and adjudication on merits, after affording both the assessee and the AO adequate opportunity of being heard in the matter and to file details/submissions required in this regard. Consequently, ground Nos.2 to 4 raised by the assessee are allowed for statistical purposes. Since these grounds by the assessee raised on merits with regard to its claim for grant of relief under section 90 of the Act or under DTAA have been restored for consideration and adjudication on merits to the file of the CIT(A) as per the findings in paras 6.3.1 and 6.3.2 of this order (Supra), it is not deemed Smt. Gunjahalli Renuka appropriate to adjudicate these grounds raised

I have heard the rival contentions and perused the material on record. The main contention of the learned A.R. is that the assessee being a non- resident is not liable for taxation of salary income earned in Dubai which has been included in the total income inadvertently. The same is to be excluded from the total income of the assessee. In support of this she drew our attention to the copy of salary certificate from Centurion Consulting FZE, Dubai placed in Paper Book, page No. 22, copy of Bank Statements for the period 21.09.2012 to 31.03.2013 from Emirates NBD, Bank Street Branch, Dubai placed in Paper Book page Nos. 23 to 37. She also produced copy of passport placed in Paper Book page Nos. 37 to 39 and submitted that on examination of these documents one can easily come to the conclusion that the assessee being a non-resident earned salary income in foreign country which cannot constitute a part of total income of the assessee and it is exempted income in India in the hands of the assessee, the same to be excluded from taxation. In my opinion, these facts required to be examined at the end of the AO in the light of above documents. Accordingly in the interest of justice, I remit the entire issue in dispute to the file of the AO for re-examination. Further the assessee is at liberty to place any other document in support of her claim. Accordingly, the order of the lower authorities are set aside and remitted to the file of the AO for fresh consideration.