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TMI Blog2013 (4) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate was not considered and not taken on record as the date of issuance is crucial for a certificate on this point, therefore, reject the submission made by the A.R. on this point. Deduction of TDS - Net Income or Gross income - Held that:- On perusal of the assessment order, it is found that the AO has taxed the gross income including the tax deducted by Poland Govt. Relying on the aforesaid decisions of CIT vs. Yawar Rashid & Others [1995 (12) TMI 68 - MADHYA PRADESH HIGH COURT] the assessee is liable to tax with respect to net income i.e. the net income which it has received after deduction of tax from the Poland Company . Therefore, remit this issue to the file of A.O. for a limited purpose of examining the amount received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n managerial position that was submitted during the course of hearing was not considered. The other mistakes are that there is no discussion about Section 90(2) in the order and Circular No. 333 and Circular No. 621 issued by CBDT were not considered while passing the order. It has been further submitted that various judgments on DTAA which the assessee has relied upon and submitted in the written submissions have not been considered while passing the order. It is further stated that Article 17(2) of DTTA between India and Poland has been incorrectly interpreted. Ld. A.R. has further submitted that the real income concept has not been considered due to which the tax levied by Poland Govt. has been charged to tax resulting into double taxati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us has submitted that non-mentioning of the date on the certificate was due to oversight by the Poland Company and the same cannot be the basis of non-consideration of certificate. We find no merit in the submission of the Ld. A.R. for the reason that the date of issuance is crucial for a certificate on this point, we, therefore, reject the submission made by the A.R. on this point. 6. At Para 7 on Page No. 5 of the order it is stated: " the person is required to be "Top Legal Managerial Position" which is a typographical error, and should therefore be read as "Top Level Managerial Position". 7. With respect to the considering the gross salary as taxable income, in the last sentence of Para 7 on page 6 due to typographical error it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . company is assessable to tax and not the gross dividend as the portion of dividend represented by tax deducted at source is not an income of the assessee. 11. In the case of CIT vs. Yawar Rashid Others 218 ITR 699 (MP High Court) it has been held the tax deducted at source outside India do not form part of total income. 12. On perusal of the assessment order, we find that the AO has taxed the gross income including the tax deducted by Poland Govt. Relying on the aforesaid decisions of High Courts, we, feel that the assessee is liable to tax with respect to net income i.e. the net income which it has received after deduction of tax from the Poland Company We, therefore, remit this issue to the file of A.O. for a limited purpose of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate court. The application made by the assessee under section 254(2) did not conform to the requirement of section 254(2) read with rule 34A of the Income-tax (Appellate Tribunal) Rules, 1963, and it should have been dismissed." 14 In the case of Perfetti Van Melle India P. Ltd. vs. Commissioner of Income-tax (2008) 296 ITR 595 (Del) the Hon'ble High Court has held as under:- "Section 254(2) of the Income-tax Act, 1961, enables the concerned authorities to rectify any "mistake apparent from the record." An oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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