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TMI Blog2013 (7) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 143(1) (a) as order passed u/s 154 against order passed u/s 143 (1) (a) is an extension of proceedings u/s 143 (1) (a) - the interest of justice we set aside the matter to the office of Assessing Officer who will readjudicate the case on the basis of facts of the case and as per law – appeal allowed in favour of assesse - ITA No.5601/DEL/ 2004 - - - Dated:- 12-7-2013 - Shri U. B. S. Bedi And Shri T. S. Kapoor,JJ. For the Petitioner : Ms. Shumana Sen, Sr. DR. For the Respondent : Shri Taramdeep Singh,CA. ORDER Per T. S. Kapoor, AM This is an appeal filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-XI, New Delhi dated 25.10.2004 for the assessment year 1999-2000. The grounds take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer to tax the net amount of dividend received, in case credit for Advance Corporation Tax was not available to the assessee. The appellant craves leave to add, alter, delete or vary from all or any ground of appeal before or at the time of hearing." 2. The brief facts of the case are that, the assessee company filed its return of income declaring loss of Rs.8,98,24,599/- and claiming refund of Rs.1,03,37,677/- on 30.12.1999. While passing order u/s 143(1) (a) of Income Tax Act, the Assessing Officer observed that TDS certificates amounting to Rs.51,47,732/- were defective and hence credit for the same was not given. Against the said order u/s 143(1) (a), the assessee filed rectification application on 05.06.2000 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... infirmity in the fact that the same was taxable in India and that as per provisions of taxability in the United Kingdom the assessee has not been taxed there and that since the taxes have not been credited to the account of the Govt. of India credit for the same cannot be given in accordance with the provisions of section 200 of the I. T. Act, 1961. (d) That the assessee in terms of the provisions of Article 11[1(2)] the assessee had the opinion of claiming credit for the advance corporation tax to the extent the credit exceeded his liability to the United Kingdom tax. The assessee has not furnished any proof that it had claimed credit for the same in the United Kingdom or not. (e) As per the provisions of Article 2 of the DTAA the adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Assessing Officer but also during the course of appellate proceedings when it failed to rebut the specific reasons discussed by the Assessing Officer. Further, as a matter of fact, this issue has already been adjudicated upon by my predecessor vide his order dated 27.02.2003 in Appeal No.375/99-00 filed by the appellant against order u/s 154 read with section 143(1) (a) of the Income Tax Act 1961. The same issue cannot be taken up again for fresh decision. Accordingly, the appeal filed by the asessee is dismissed." 5. Aggrieved, the assessee filed appeal before ITAT and ITAT vide its order dated 06.03.2009 dismissed the appeal of assessee. The assessee filed appeal before Hon'ble Delhi High Court which vide order dated 19th Novemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per book and para 15 of Tribunal's order was read and in view of this, it was argued then there was no evidence of any credit of taxes having been paid to coffers of Government of United Kingdom and, therefore, it was argued that the Ld. CIT (A) has rightly rejected the claim. 9. We have heard the rival parties and have gone through the material placed on record. We find that the Tribunal in its order dated 6th March, 2009 vide para 20 had held that credit may have to be given for amount not exceeding that portion of Indian tax which such income bears to the entire income chargeable to Indian Tax. However in para 21 and para 22 it dismissed the appeal by holding as under: "21. Further, as a matter of fact, this issue has already been ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment orders passed u/s 143 (3) replaces order passed u/s 143(1) (a). Therefore, in our opinion the assessee had the right to appeal against order passed u/s 143 (3) and had the right to agitate the same issue as already agitated in proceedings against order passed u/s 154 read with section 143(1) (a) as order passed u/s 154 against order passed u/s 143 (1) (a) is an extension of proceedings u/s 143 (1) (a) 11. As regards merits of the case, we observe that Ld. CIT (A) dismissed the appeal of the assessee just holding that assessee was not able to rebut each and every point raised by Assessing Officer and further on the basis that appeal was already decided by his predecessor in appeal filed against order u/s 154. In view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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