Case Law Details
Smt. Maya C Nair Vs ITO (ITAT Bangalore)
The contention that the assessee did not furnish TRC and therefore it cannot be allowed the exemption is not correct. The furnishing of TRC is applicable only to cases where the benefits under the DTAA are claimed; as can be made out from a plain reading of Sec.90(1) of the Act. Further, in the decision cited by the learned Departmental Representative (supra), the Tribunal had held that absence of TRC cannot be a ground for denying the benefit of DTAA. It has only held that the assessee should furnish evidence for the claim of exemption. In the case on hand, the assessee has furnished evidence of her stay abroad in the year under consideration before the Assessing Officer and as the salary for services rendered did not accrue in India for that period of stay outside India, that salary income is not taxable in India. I, therefore, am inclined to agree with the assessee’s contention that the finding of the CIT(Appeals) – 12 in her order dt.31.10.2017 is based on application of sound principles to the facts of the assessee’s case and no useful purpose would be served by remanding the case to the CIT(Appeals)-10, Bangalore, as sought by the learned Departmental Representative. In view of the above, we hold that the addition made by the Assessing Officer to the salary income of the assessee is incorrect and the action of the CIT(Appeals)-10 in confirming the said addition ex-parte, without examining the facts and underlying principles of the case and judicial pronouncements in this regard is untenable and is therefore cancelled. Consequently, the grounds raised by the assessee are allowed.
Condonation of delay, substantial justice should prevail over technical considerations
Admittedly there has been a delay of 112 days in filing the appeal. The Hon’ble Apex Court in the case of MST Katiji & Others (167 ITR 471) (SC), while explaining and laying down the principles that need to be kept in mind while considering an application for condonation of delay, has emphasised that substantial justice should prevail over technical considerations. The Hon’ble Court also explained that a litigant does not stand to benefit by lodging the appeal late and that the expression ‘every day’s delay must be explained’ does not mean that a pedantic approach should be taken. The doctrine should be applied in a rational, common sense and pragmatic manner.
Taking into account the aforesaid principles laid down by the Hon’ble Apex Court and after careful consideration of the submissions / reasons put forth by the assessee in the Affidavit, I am of the considered opinion that there was sufficient and reasonable cause for the delay of 112 days in filing this appeal, as even if the said delay is condoned, no loss would be caused to Revenue, as legitimate taxes payable in accordance with law alone will be collected. In the aforesaid factual matrix of the case in hand and judicial precedents on the subject, referred to above, I condone the delay of 112 days in filing this appeal before the Tribunal and admit the appeal for consideration and adjudication. It is accordingly ordered.
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