P.suresh Kumar v. Commissioner Of Income Tax, International Taxation, 4Th Floor, Bsnl Building (Tower-1)

P.Suresh Kumar ... Petitioner Vs 1 Commissioner Of Income Tax, International Taxation, 4th Floor, BSNL Building (Tower-1) No.16, Greams Road, Chennai~6. 2 Income Tax Officer, Salary Ward VI, Chennai-34. 3 Income Tax Officer, International Taxation-2(2), Chennai-34. ....Respondents Prayer: Writ Petition filed under Article 226 of theConstitution of India praying to Writ of Certiorari to call fortherecordsofthe1stRespondenthereininF.NO.CIT/IT/CHE/113(264(3)/2016-17 and quash the order dated28.12.2017 passed therein and further direct the 1st Respondentto entertain and hear the Petition U/S 264 filed by thePetitioner on 1.8.2016 on merits. The petitioner is an Non~resident Indian (NRI) and filed returnsof income for the Assessment Years (AYs) 2005-06 to 2010-2011offering income to tax in terms of the provisions of the IncomeTax Act, 1961 (in short 'Act'). He is a salaried employee ofTata Consultancy Services (TCS) deputed to TCS, United Kingdom(UK) from July, 2004. From 07.01.2005, he attained the statusof NRI and has been assessed in that status subsequently. In the https://hcservices.ecourts.gov.in/hcservices/ course of the employment, taxes were being deducted at source bythe employer and remitted to the treasury at UK and by virtue ofhis continued employment in India, tax was being deducted atsource on the Indian component of the salary as well. Accordingto the petitioner, the salary remitted in INR had also beenincluded in the salary paid to him in UK. 2. Since the petitioner was liable to tax only in UK in linewith Article 16 of the Double Taxation Avoidance Agreement(DTAA) between India and UK in terms of which salaries andremuneration derived from employment by a resident in onecontracting State was taxable only in that State, he wasentitled to a refund of tax paid in India. He thus filed apetition dated 22.08.2011 under Section 154 of the Act beforethe Income Tax Officer, Salary Ward/R2 seeking such refund onthe ground that there was a mistake apparent on the face of therecord and his income tax returns offering salary income to taxin India were erroneous. Rectification was sought only in theyear 2011 as it was only then, when Form E60 was issued by TCS,that the petitioner came to know that tax had been paid both inIndia and in UK for the four assessment years in question andthat there had been double taxation in respect of the sameincome. Since the period for rectification of mistake is fouryears from end of the year to which the return pertained, thereturn for AY 2006-07 is barred by limitation. The Section 154petition was filed only in 2011 and is hence beyond time. TheWrit Petition insofar as it relates to AY 2006-07, is dismissedon this short point. 3. No action was taken by R2 despite reminders on 21.07.2013 and10.07.2015. On 23.07.2015, R3, i.e., the Income Tax Officer,International Taxation, wrote to the petitioner conveying thatthe Assessing Officer had no power to rectify the incomereturned by the assessee and the only remedy for the assesseewas to file revised returns correcting defects, if any, in theoriginal returns of income. On 27.07.2015, R3 once again wroteto the petitioner stating that any relief as per DTAA requiresfiling of a revised return with a petition for condonation ofdelay under Section 119(2)(b). R3 also clarified that nocondonation could be sought beyond the period of six years fromthe end of the assessment year to which the petition related. 4. Admittedly the petitioner has not filed revised returns ofincome. On 12.10.2015, the petitioner filed a petition underSection 119(2)(b) as per the suggestion of R3. Parallely, on01.08.2016, the petitioner approached R1/the Commissioner ofIncome Tax (CIT) with a petition seeking revision under Section264 of the Act. On 26.10.2017, R1 communicated to the https://hcservices.ecourts.gov.in/hcservices/ 4. Admittedly the petitioner has not filed revised returns ofincome. On 12.10.2015, the petitioner filed a petition underSection 119(2)(b) as per the suggestion of R3. Parallely, on01.08.2016, the petitioner approached R1/the Commissioner ofIncome Tax (CIT) with a petition seeking revision under Section264 of the Act. On 26.10.2017, R1 communicated to the https://hcservices.ecourts.gov.in/hcservices/ petitioner that since the petition under Section 264 waspending, the petition under Section 119(2)(b) was to be treatedas closed. 5. On 26.12.2017, the impugned order came to be passeddismissing the petition under Section 264 on the ground that nocase has been made out to justify the substantial delay infiling of the 264 petition. 6.In respect of AY 2010-11, an order under Section 143(1) dated25.05.2011 has been passed accepting the return, that wasrevised in terms of Section 154 by granting the refund assought. 7. As far as AYs 2007-08, 2008-09 and 2009-10 are concerned,Section 154 petitions have been filed on 22.08.2011, withintime. 8. As regards the argument of the revenue that the Section 264petitions are delayed, intimation in terms of Section 143(1) forAY 2007-08 is dated 11.03.2009, AY 2008-09, 19.03.2010 and AY2009-10 is 14.09.2010 and the Section 264 petitions have beenfiled on 01.08.2016 after periods of 8 years 192 days, 7 years192 days and 6 years 19 days respectively. 9. Section 264 provides for revision of an order, within aperiod of one year from the date on which the order in questionwas communicated to the assessee or the date on which heotherwise came to know of it, whichever is earlier. It alsoprovides for the condonation of delay of an unlimited periodwhere the CIT is of the view that the filing of petitionbelatedly is justified. In the present case, the petitioner,challenging the intimations, has filed petitions under Section154 within time and it is only on 23.07.2015 that R3 hasrejected the same, paving the way for the subsequent petitionsunder Section 264. Thus, there does not appear to have been anydelay in the filing of the petitions under Section 264. However,the petitioner has not, despite being specifically directed to,filed revised returns and this, in my view, is fatal to his case. 10. In Goetze (India) Ltd. V. CIT (284 ITR 323), the questionthat arose for consideration was whether an assessee can bepermitted to claim deduction not claimed in the original return.The assessee in that case had omitted to claim deduction in thereturn of income, but subsequently claimed the same by way of aletter filed before the Assessing Authority in the course ofassessment. The Assessing Authority rejected the claim on theground that it had not emanated from the return of income. In appeal, the assessee relied upon the judgment of the SupremeCourt in the case of National Thermal Power Company Ltd (NTPC).V. CIT (229 ITR 383), wherein the Supreme Court had held that itwas always open to an assessee to raise a new ground of appealeven at the stage of second appeal before the Income TaxAppellate Tribunal, provided all facts necessary to challengethat ground were available on record and no new facts needed tobe pressed into service. appeal, the assessee relied upon the judgment of the SupremeCourt in the case of National Thermal Power Company Ltd (NTPC).V. CIT (229 ITR 383), wherein the Supreme Court had held that itwas always open to an assessee to raise a new ground of appealeven at the stage of second appeal before the Income TaxAppellate Tribunal, provided all facts necessary to challengethat ground were available on record and no new facts needed tobe pressed into service. 11. In Goetze (India) (supra), the Supreme Court considered theearlier judgment in NTPC and found a difference insofar as inNTPC, it was the power of the Tribunal to admit an additionalground that had been the subject matter of decision, whereas, inGoetze (India), it was the power of the Assessing Authority toadmit a claim of deduction. While not disturbing the ratio ofthe judgment in NTPC, the Supreme Court in Goetze (India)rejected the claim of the assessee holding that a fresh claimmay be made by an assessee only by way of a revised return. Infact, R2 has, in communication dated 23.07.2015, specificallydirected the petitioner to file a revised return of Income toseek refund, and this has been ignored. 12. This Writ Petition is dismissed. No costs. ConnectedMiscellaneous Petition is closed. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar sl To 1 The Commissioner Of Income Tax, International Taxation, 4th Floor, BSNL Building (Tower-1) No.16, Greams Road, Chennai-6. 2 The Income Tax Officer, Salary Ward VI, Chennai-34. Salary Ward VI, Chennai-34. 3 The Income Tax Officer, International Taxation-2(2), Chennai-34. +1cc to M/s.Hema Muralikrishnan, Advocate Sr.37738 W.P. No.28620 of 2019andWMP. No.28377 of 2019ad[co]srg 10/03/2021