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Case Law Details

Case Name : Kimiyoshi Muto Vs DCIT (ITAT Delhi)
Appeal Number : ITA No. 1009 & 1010/Del/2017
Date of Judgement/Order : 09/06/2021
Related Assessment Year : 2008-09 and 2011-12
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Kimiyoshi Muto Vs DCIT (ITAT Delhi)

The case of the assessee was re-opened under Section 147 of the Act on the ground that the assessee has shown perquisite under rent-free accommodation by considering only the Indian salary whereas, according to the Assessing Officer, he was required to compute perquisite value of rent-free accommodation by including foreign salary also.

Clearly, facts that emerge are that assessee is an individual, resident at that particular time, employed by an Indian company. After those years when the ld. CIT (Appeals) issued the notices, it was apparent that the assessee has already left the premises. This is also evident from the postal remark. The ld. CIT (Appeals) also dismissed the appeal of the assessee more on the aspect of non-prosecution.

He did not adjudicate that whether for computing the perquisite of rent-free accommodation, only Salary paid by Indian employer is to be considered or the salary paid by foreign employer is also to be added thereto. Thus, he dismissed appeal of assesse only for non-prosecution in substance, which is not permitted.Therefore, there has to be the decision on merits by the ld CIT (A). Naturally, assesse did not have any notice of hearing as the assesse has left the premises. No doubt, it is the duty of the assesse to intimate a change in address, but that does not give power to appellate authority to dismiss appeal of assesse for non-prosecution. Therefore, apparently now assesse needs to be heard. The ld. AR now has categorically stated that the legal representative of the assessee, mentioned in column No. 10 of Form No. 36, would appear on the appointed time to represent the case of the assesse. Even otherwise the ld. CIT (Appeals) should have decided the issue on the merits whether the Indian salary and foreign salary both are required to be considered for computing the perquisite of rent-free accommodation provided to the assessee. Therefore, in the interest of justice, we set aside this appeal back to the file of the ld. CIT (Appeals) with a direction to the assessee through his legal representative appearing before us to appear before the ld. CIT (Appeals) and submit all the relevant contentions before him in the manner provided under the Act within 60 days from the date of this order. The ld CIT (A) then issue notice of hearing to assesse in accordance with law and then decide the issue on merits. In view of this, we set aside this appeal back to the file of the ld. CIT (Appeals)for deciding the issue on the merits of the case.


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