Case Law Details
Learned Advocate for the petitioner has submitted that, the petitioner was working as a marine engineer and had rendered services as such to a foreign shipping company during the assessment year 2011-2012. The petitioner had filed income tax return for such assessment year under the residential status as non-residential Indian. He had disclosed a receipt of a remuneration of Rs. 5,63,850/- in US Dollars. The petitioner was issued an assessment order cum intimation under Section 143(1). The petitioner did not file any appeal. The petitioner had applied under Section 264 of the Income Tax Act, 1961.
Learned Advocate for the petitioner has submitted, referring to 2011 (198) Taxman 551 (Director of Income Tax v. Prahlad Vijendra Rao) that, the income received by the petitioner is exempt from income tax as the petitioner had received his salary for work done outside India for a period of 286 days during the assessment year. Relying upon 2001 (247) ITR 260 (Commissioner of Income Tax v. Avtar Singh Wad hwan) the learned Advocate for the petitioner has submitted that, the interpretation of Section 5 given by the impugned order is wrong. In support of the proposition that, income of a non-resident Indian is exempt from income tax and that such income has to be assessed in view of the guidelines laid down by different authorities, learned Advocate for the petitioner has relied upon 2005 (276) ITR 216 (Smt. Phool Lata Somani v. Commissioner of Income Tax & Ors.), 2008 (297) ITR 17 (Commissioner of Income Tax v. Williamson Financial Services & Ors.), 1986 (160) ITR 920 (Commissioner of Income Tax, Delhi v. Mahalaxmi Sugar Mills Co. Ltd.).
Learned Advocate for the petitioner has referred to an administrative instruction for guidance of income tax officers on matters pertaining to assessment and has submitted that, the income tax officer ought to have guided the assessee with regard to the income tax payable.
Learned Advocate for the department has submitted that, the order under Section 143(1) of the Income Tax Act is appealable under Section 246A. He has referred to Section 264(7) and Explanation 1 thereto and has submitted that, the impugned order does not contain any irregularity warranting interference by the writ Court. The petitioner having an alternative of remedy of appeal had chosen not to avail of the same. Therefore, the petitioner not ought to be allowed to contend the grounds as sought to be canvassed herein. He has submitted that, the decision relied on by the petitioner relates regular appeals and that, they have no manner of application to the facts of the present case.
I have considered the rival contentions of the parties and the materials made available on records.
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