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Income Tax Appellate Tribunal, KOLKATA ‘A’ BENCH, KOLKATA
Before: SRI PRADIP KUMAR CHOUBEY & SRI RAKESH MISHRA
order : December 26th, 2024 ORDER PER BENCH: Both the appeals filed by the assessee pertaining to the Assessment Years (in short ‘AY/AYs’) 2012-13 & 2014-15 are directed against the separate orders passed u/s 250 of the Income Tax Act, 1961 (in short, the ‘Act’) by the Commissioner of Income Tax (Appeals)-22, Kolkata [hereinafter referred to as the ‘ld. CIT(A)’] dated 14.02.2017 & 30.03.2017 respectively. Since the issues raised in both these appeals are common and the facts are identical, therefore, they were heard together and are being decided vide this common order for the sake of convenience and brevity.
Page 2 of 11 For Pritpal Singh Basan -Sd- Sumanta Saha & Kirti Kapoor (Authorized Representatives) 1.3 A similar application with slight modification has been filed for the A.Y. 2014-15. Considering the peculiar facts of the case, the condonation of delay application and the reasons stated therein and the non-disposal of the rectification application filed on 10.03.2017 which was to be decided within 6 months from the end of the month in which the application was received as per the provisions of sub-section (8) of section 154 of the Act but has not been decided, we are satisfied that the assessee was prevented by sufficient and reasonable cause from filing the instant appeal within the statutory time limit. We, therefore, condone the delay and admit both the appeals for adjudication on merits.
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Brief facts of the case of the assessee as per the statement of facts are that the assessee is a marine engineer and remained for most of time out of India and totally relied on persons looking after filing of Page 5 of 11 Page 6 of 11 Page 8 of 11
In view of the CBDT Circular, the assessee is entitled to the claim of relief from the applicability of the provisions of section 5(2)(a) of the Act, which is also allowable to the income accrued outside India in view of the decision of the jurisdictional High Court in the case of Smt. Sumana Bandopadhyay & Another Vs The Deputy Director of Income Tax (International Taxation) GA 3745 of 2016, ITAT 374 of 2016 reported in 2017(7) TMI 503-Calcutta High Court wherein it is held that “We concur with the ratio of the decision of the Karnataka High Court and in our opinion the interpretation be given to sub Section (b) of Section 5(2) of the Act would also apply to Section 5(2)(a) of the Act. The Circular is clarificatory in nature and is applicable for construing the aforesaid provision for the relevant assessment year. In our opinion the authorities under the Income Tax Act did not properly apply the provisions of law to the case of the assessee. We are of the view that the Assessing Officer was wrong in adding the aforesaid sum to the income chargeable to tax of the assessee for the relevant assessment year. We accordingly allow the appeal and answer the question framed by us in favour of the assessee.” Hence, the salary received/accrued outside India will not be taxable as per the provisions of section 5(2)(a) or 5(2)(b) merely because the same has been credited in an NRE account in India.
Hence, in view of the Circular No. 13/2017 read with the corrigendum thereof and the order of the Hon’ble jurisdictional High Court in the case of Smt. Sumana Bandopadhyay & Another (supra), Ground Nos. 1 & 2 of the appeal are allowed and the income is held to be not taxable merely because it is credited in the NRE account of the assessee and the Page 9 of 11 Page 10 of 11 Assistant Registrar ITAT, Kolkata Benches Kolkata Page 11 of 11