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Income Tax Appellate Tribunal, MUMBAI BENCHES “I”, MUMBAI
Before: Shri G S Pannu & Shri Sandeep Gosain
O R D E R Per G S Pannu, Accountant Member
This appeal is directed against the order of the CIT(A)-33, Mumbai, dated 15.06.2016, which in turn has arisen out of the order passed by the Assessing Officer u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) relating to A.Y. 2011-12.
In this appeal the assessee has raised following grounds:
“1. The Ld. CIT(A) erred in not adjudicating the Appellant’s Additional Ground filed against the Order of Assessing Officer for not having allowed double tax relief of Rs 6,59,183/- in respect of tax paid on its income earned in Kuwait under section 90/91(1) of the Income Tax Act while passing the assessment order. 2. He failed to appreciate that: i. The Appellant fulfilled all the conditions of section 90/91(1) and thus was eligible for the said section. ii. On identical facts, for all the earlier years beginning with A.Y. 1996-97, the Income-tax Appellate Tribunal and Hon’ble Bombay High Court had ruled on the same issue in favour of the Appellant u/s. 91(1) of the Act. 3. The Appellant prays that the relief u/s. 90/91(1) of the Act be allowed as not granting of same by Ld. CIT(A) is erroneous, causing injustice contrary to the decision of Hon’ble Bombay High Court.”
As the grounds of appeal reveal, the grievance of the assessee is against the denial of claim of double tax relief based on the provisions of section 90/91(1) of the Act. As per the assessee, it fulfils requisite conditions namely, that it was resident in India during the previous year relevant to assessment year under consideration; that the income has accrued to it in Kuwait during the instant year; and, that India and Kuwait did not have agreement for the relief or avoidance of double taxation except for income derived from international air transport.
3. Before us, learned representative pointed out that the assessee has raised the issue before he Assessing Officer and as well as the CIT(A) by way of Additional Ground but both the authorities have not given any finding with regard to the claim of the assessee. The learned representative also reiterated that for all the earlier years beginning A.Y. 1996-97, the ITAT as well as Hon’ble Bombay High Court has ruled the issued in favour of the assessee for relief u/s. 90/91(1) of the Act. Supporting the plea that the claim was raised before the Assessing Officer, learned representative referred to page 8 of the paper-book wherein is placed copy of a communication dated 16.12.2013 duly acknowledged, which contains assessee’s claim for relief u/s. 91(1) of the Act. At page 10 and 11 of the paper book is placed a communication dated 08.08.2014, duly acknowledged on 12.08.2014 by the CIT(A), which is copy of Additional Ground of appeal raised by the assessee for relief u/s. 90/91 of the Act. On this basis it is sought to be pointed out that though point was raised, it had escaped determination by both the authorities below.
The learned DR has no objection to the plea of the assessee for remanding the matter back to the Assessing Officer for proper decision on merits.
Having considered the rival submissions and factual matrix, we deem it fit and proper to restore the matter back to the file of the Assessing Officer, who shall consider the claim of the assessee for relief u/s. 91(1) of the Act as per law. Needless to mention, the Assessing Officer, in the ensuing proceedings, shall allow reasonable opportunity of being heard to the assessee and thereafter pass order granting relief u/s. 91(1) of the Act in accordance with law.
Thus, for statistical purposes the appeal is treated as allowed.
The above decision was pronounced in the open court at the conclusion of hearing in the presence of both the parties today i.e. 22nd May, 2018.