9911796707
TMI Blog2012 (10) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appeals preferred by the Revenue for assessment years 1999-2000 to 2004-05. As the issues arising out of these appeals and cross objections are common, for the sake of convenience, these were heard together and are being dispose off by way of this consolidated order. 2. These appeals were posted before the Bench for the first time on 9th September 2009. Thereafter, the case was adjourned on various grounds. On 7th December 2010, and on 3rd October 2011, the assessee sought adjournments. On 20th February 2012, none appeared on behalf of the assessee. 3. During the course of hearing, the learned Counsel for the assessee Mrs. Aarati Sathe, Advocate, High Court, filed a letter dated 9th March 2012, stating that she, along with Mr. S.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uery from the Bench, he submitted that his address is the only address available on which notices can be served on the assessee and that the assessee resides abroad and there is no possibility of serving notices on the assessee. 5. The learned Departmental Representative, Mr. Jitendra Yadav, representing the Revenue, by way of a letter dated 8th May 2012, submitted as follows:- "1. The above cases came up for hearing and were adjourned for a number of times at the request of the assessee. Some of the dates as appearing on the appeal folder are 18.1.10, 2.3.10, 25.6.10, 1.9.10, 7.12.10, 22.2.11, 2.6.11, 3.10.11, 29.11.11 and 29.2.12. The Hon'ble Members had accorded the final opportunity to the Counsel for assessee on 3.10.11 and 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red that the assessee has settled down in Canada and the entire business is managed by his brother on the strength of general power of attorney dated 24.1.1986. The copies of the passport submitted by the power of attorney holder revealed that the assessee is not a resident of India and hence is not entitled for benefits u/s. 80HHC. The reasons were recorded, and the assessment proceeding for A.Y 1999-2000 to 2004-05 were reopened by the Department. 3. The assessee kept on litigating and challenging the reopened assessment stating that he should not be treated as non-resident on the basis of the copies of passport. It was further submitted that even if it is presumed that the assessee is a non resident then as per provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encing the above facts are a part of the paperbook submitted by the assessee. Hence, it is the submission of the undersigned that the claim of the assessee that there is no PE in India and that the assessee's activities in India are restricted to making of purchases, is without any merit and needs to be rejected. For the same reasons, it is submitted that the case laws relied upon by the assessee is distinguishable on the facts of this case. 5. It is further submitted by the assessee that the provisions of sec. 80HHC being restricted to the residents of India are discriminatory under Article 24(2) of the Canada DTAA. This contention of the assessee is based on the decision of the Hon'ble Spl. Bench in the case of Rajeev Sureshh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re only for bonafide tax payers. The assessee in this case was filing return of income year after year claiming the benefits of sec. 80HHC, REP licenses, Apeda Subsidy and running of full fledged business. Once he was surveyed by the department and it was found that he is not a resident of India, he started litigating the reopening of the assessments, He also litigated the claim of being a non resident without submitting any documentary evidence in support of the claim of the residency in India. Then for arguments sake he submitted that even if he is a non resident, then under Article 7 of the Canada DTAA there is no PE in India, when that claim was rebutted, he claimed the benefits of discrimination clause. It is already submitted that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who has now thrown his hands up for the reasons already stated. The fact however, remains that the power of attorney is valid even today and has not yet been withdrawn. The POA holder has failed to clarify as to what is the matter in which his brother (the assessee) is not cooperating. Thus the inability to represent the matter on behalf of his brother, as expressed before the Hon bench by Najmuddin Jassani, on 3.5.12 should be read as his intention not to pursue the appeals of the revenue. Hence, the appeals of the Revenue needs to he disposed off in the interest of justice. 8. It is therefore, submitted that the appeals of the Revenue may kindly be allowed." 6. On a careful consideration of the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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