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TMI Blog2012 (10) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... d Power of Attorney holder acknowledges the receipt of notice but refused to co-operate for the reasons specified in the letter. - Decided against the assessee. - IT APPEAL NOS. 4132 TO 4137 (MUM.) OF 2008 & 2961-2962 (MUM.) OF 2010 - - - Dated:- 18-5-2012 - B.R. MITTAL, J. SUDHAKAR REDDY, JJ. Jitendra Yadav for the Appellant. ORDER Per Bench The present appeals preferred by the Revenue, are directed against the impugned order dated 31st March 2008, passed by the Commissioner (Appeals)-XXXIII, Mumbai, for assessment years 1999-2000 to 2004-05, and the impugned order dated 6th January 2010, passed by the Commissioner (Appeals)-X, Mumbai, for assessment years 2005-06 and 2006-07. The cross objections preferred by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t co-operating in the matter and off late, his whereabouts is also not known to the Undersigned and repeated attempts to contact him has proved futile. Under the above circumstances, it is very difficult for me to represent the matter in the Hon'ble I.T.A.T. due to the non-cooperation of my brother Mr. Nasruddin Alibhai Jessani (the Appellant). From his behaviour, I feel that he does not want me to represent him before the Hon'ble I.T.A.T." 4. The Bench enquired from the duly constituted Power of Attorney holder as to whether he communicated to the assessee this fact of withdrawal of Vakalatnama and their withdrawal from the case of the assessee. The duly constituted Power of Attorney holder submitted that he has informed the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee does not want him to represent the matter before the ITAT. On these grounds the appeals filed by the assessee were withdrawn. 2. In this regard, it is submitted by the undersigned that the assessee's brother has been holding the power of attorney of the assessee since 24.1.86, for conducting the business in the name of M/s. Almas Impex at Bombay. In all these years the entire business was run and returns were filed claiming that the assessee is the resident of India and claiming benefits under sec. 80HHC. Then on 16.12.2005 the department conducted a survey on the assessee and incriminating evidences were found, during the course of the survey action the statement of Shri Najmuddin Jasani, POA holder for the assessee, was recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has a PE in India. In all these years the assessee was running a full fledged business as can be seen from the number of balance sheets filed by the assessee in the paper book. The purchases were in India, the sales were booked from India and the foreign exchange proceeds were received in India. The assessee was claiming export incentives and REP licenses. It has claimed subsidy from Apeda. It has maintained property, paid property tax, managed bank accounts and carried out a full fledged business activity. On going through the power of attorney executed by the assessee in favour of his brother, it is seen that the power of attorney holder is authorized to carry on the business which is run in the name of Almas Impex. All these document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifies that a resident of the contracting states means, any person who under the laws of that state, is liable to tax therein by the reason of his domicile, residence, place of management or any other criteria of similar nature. It is therefore, clear that being a citizen of Canada does not mean that he is a tax resident of Canada. Hence in absence of the tax residency certificate the benefits of the Canada DTAA will not he available to the assessee. Hence the decision of the Hon'ble Spl Bench in the case of Rajeev Sureshbhai Gajwani 129 ITD 145(SB) (Ahd) is not applicable in the case of the assessee, 6. Without prejudice to the submissions in the aforementioned paragraphs, it is stated that the treaty provisions are there only fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the return in India. 7. Looking at the totality of the facts and the circumstance of the case it is seen that the assessee has not been acting in good faith. On this count alone no treaty benefit should be granted to the assessee. The matter does not end here. By withdrawing the cross objections under the pretext of non cooperation of the assessee and the whereabouts not being known, the POA holder is playing the last card of thwarting the ends of justice in the appeals filed by the Revenue. Because, now the Department will have no place to even serve the notice on the assessee as for all these years the business was being conducted by the power of attorney holder who happens to be the brother of the assessee, who has now thrown ..... X X X X Extracts X X X X X X X X Extracts X X X X
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