Case Law Details
Prasanta Kumar Mishra Vs ACIT (ITAT Cuttack)
Admittedly, the assessee individual is a non-resident Indian and the facts clearly show that the return has been filed with mistakes. These mistakes can admittedly be rectified by filing a rectification application. The rectification application admittedly is not being considered on account of the limitation provided u/s. 154(7) of the Act. However, in view of the submissions made by both the sides and considering the Circular No. 4 of 2012 dated 20.6.2012 issued by the CBDT, the issues in its appeal are restored to the file of the AO for re- adjudication of the rectification application on merits. The Assessing Officer is at liberty to examine whether the assessee was NRI during the relevant point of time and whether he is entitled to the benefit of exemption u/s.5(1)(c) r. w. s 6 of the Act. If it is found that the claim of the assessee is correct, then, the AO is to proceed to decide the rectification application on merits in accordance with the provisions of section 5(1)(c) r .w. s 6 of the Act.
FULL TEXT OF THE ORDER OF ITAT CUTTACK
This is an appeal filed by the assessee against the order dated 9.6.2022 of the ld CIT(A), Kolkata-22, in Appeal No. ITBA/APL/S/250/2022 -23/1043389940(1) for the assessment year 2009-2010.
2. Shri P.R. Mohanty, ld AR appeared for the assessee and Shri Charan Dass, Sr. DR appeared for the revenue.
3. It was submitted by ld AR that the assessee is an individual, who is deriving income from salary rendering services outside India in UAE during the relevant assessment year. The assessee had authorized M/s. D. M. Associates, a Chartered Accountant Firm at Bhubaneswar as the authorized representative and empowered them to sign and file the returns. Consequently, the return of the assessee-individual came to be filed by the C.A. firm for the relevant assessment year belatedly. In the said return, the benefit of exemption u/s.5(1)(c) r.w s 6 of the Act treating the status of the appellant as non-resident was not claimed by mistake. An intimation came to be processed u/s.143(1) of the Act, wherein, the salary income of the assessee disclosed in the return was processed and a demand came to be raised on the assessee. Subsequently, when the demand was processed, the assessee came to know the mistake and filed a rectification application on 20.11.2015 after a delay of nearly 7 years. The rectification application came to be rejected by the Assessing Officer on the ground that it was time barred under the provisions of section 154(7) of the Act. It was the submission that even the ld CIT(A) dismissed the assessee’s appeal on the ground that the rectification application was beyond time. It was the submission that in respect of such situation, the CBDT has issued a circular No.4 of 2012 dated 20.6.2012, wherein, the CBDT has directed that the limitation of four years can be condoned and the issue can be decided on merits beyond the four years of limitation subject to condition that the claim is genuine and there is merit in the rectification petition. It was the prayer that in view of the circular No.4 of 2012 of CBDT, the Assessing officer may be directed to examine the issue and adjudicate the same and dispose the rectification application on merits.
4. In reply, ld Sr DR submitted that the issue cannot be decided in favour of the assessee without going into the merits. It was the submission that he had no objection if the issues are restored to the file of the AO for verification, examination and adjudication on merits though it is beyond four years of limitation in view of CBDT Circular No.4 of 2012 dated 20.6.2012.
5. We have considered the rival submissions. Admittedly, the assessee individual is a non-resident Indian and the facts clearly show that the return has been filed with mistakes. These mistakes can admittedly be rectified by filing a rectification application. The rectification application admittedly is not being considered on account of the limitation provided u/s.154(7) of the Act. However, in view of the submissions made by both the sides and considering the Circular No. 4 of 2012 dated 20.6.2012issued by the CBDT, the issues in its appeal are restored to the file of the AO for re- adjudication of the rectification application on merits. The Assessing Officer is at liberty to examine whether the assessee was NRI during the relevant point of time and whether he is entitled to the benefit of exemption u/s.5(1)(c) r. w. s 6 of the Act. If it is found that the claim of the assessee is correct, then, the AO is to proceed to decide the rectification application on merits in accordance with the provisions of section 5(1)(c) r .w. s 6 of the Act.
6. In the result, appeal of the assessee is partly allowed for statistical purposes.
Order dictated and pronounced in the open court on 13/12/2022.
