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TMI Blog2013 (8) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 53,19,253 does not arise at all, as issue of perquisite was originally concluded by the order dated January 24, 2006 and subsequent proceedings under section 263 did not make it as an issue. Therefore, CIT(A) raising an issue of taxability of perquisite out of the entire tax deducted at source does not arise at all, as this is not an issue considered in the order under section 154. Therefore to that extent the direction of the Commissioner of Income-tax to bring the amount to tax is beyond jurisdiction. Even on the merits, the assessee, from the beginning has submitted before the Assessing Officer that the tax refund if any does not belong to him and belongs to employer. Based on the above submissions, the issue of perquisite would not have been raised by the Assessing Officer. Be that as it may, the assessee placed evidence on record that already refund to the extent of ₹ 40,41,172 was returned to the employer and balance refund, if any arising to the assessee, would also be returned to the employer. Therefore, in our opinion, there is no error in the order and certainly no prejudice to the Revenue. Whether there is any prejudice caused to the Revenue in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment proceedings, the learned Commissioner of Income-tax initiated proceedings under section 263 and on the basis of interpretation of section 6(6) of the Income-tax Act, available at that point of time, held the assessee as resident and accordingly directed the Assessing Officer to consider the global income also. Thereafter, the Assessing Officer completed the order under section 143(3) read with section 263 on December 29, 2008 taking the global salary at ₹ 7,18,15,365, thereby determining the total income at ₹ 10,51,06,290. The assessee again under section 154 brought it to the notice of the Assessing Officer that the global income of ₹ 7,18,15,365 taken as income from the U.S.A. in fact includes the Indian salary already brought to tax at ₹ 3,24,45,350. Therefore, the assessee asked for rectification of the order to exclude double addition. Surprisingly, the Assessing Officer vide order dated February 24, 2009 deleted the entire amount of ₹ 7,18,15,365 as against ₹ 3,24,45,350 which was the amount to be excluded. 3. Based on the proposal received from the Assessing Officer and after examining the assessment records, notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate from his employer M/s. Morgan Stanley, showing therein the total payments made to the assessee from April, 2002 to 31st March, 2003. Accordingly, the assessee submits that the Income-tax return as filed by him under the US law includes salary income received in India because under the US law, the global income of the assessee is taxable and as such, the assessee submitted that rectification done by the Assessing Officer by excluding the US salary from the total income of the assessee is correct and there is no mistake in the order which would cause any prejudice to the interests of the Revenue. (iii) The second issue is relating to the taxability of the income of ₹ 53,19,253 on account of difference between tax on perquisites as paid by his employer company and the amount of tax on account of perquisites as shown by the assessee in his return of income. The assessee has submitted that his employer Morgan Stanley has filed a letter stating that the amount of ₹ 53,19,253 is due to the company. Therefore, the assessee states that it is incorrect to tax the difference of perquisites being income as the same would never have been his income as the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax. 8. On a query from the Bench as to which of the order of the Assessing Officer, the learned Commissioner of Income-tax invoked proceedings under section 263, it was submitted that proceedings mainly pertained to order under section 154. The learned Commissioner of Income-tax considered two issues. He supported the order of the learned Commissioner of Income-tax. 9. We have considered the issue and examined the details on record. We were surprised to notice that the learned Commissioner of Income-tax-26, in the guise of invoking proceedings under section 263, considered the order under section 143(3) read with section 263 dated December 29, 2009 and also under section 154 dated February 24, 2009. Incidentally both orders are within time limits permitted under section 263 for invoking jurisdiction. As already stated, there was already proceedings under section 263 earlier and this order of assessment dated December 29, 2008 was pursuant to the order under section 263 dated May 31, 2007. The issue in that earlier order under section 263 was about status of the assessee whether resident or resident but not ordinarily resident . The Commissioner of Income-tax held as res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been rectified by another 154 order by the authorities, the Commissioner of Income-tax invoked jurisdiction under section 263. In that, the assessee is free to support the order that there is no error or prejudice caused to the Revenue so as to invoke jurisdiction under section 263. As reported by the learned Commissioner of Income-tax in the order under section 263 dated May 31, 2007, the status of the assessee in respect of various assessment years is as per the following chart : Assessment Residential status as per section 6(1) read with section 6(6)(a) of the Act. 1993-94 NR 1994-95 NR 1995-96 NR 1996-97 Not ordinarily resident (NOR) 1997-98 NOR 1998-99 NOR 1999-2000 NOR 2000-01 NOR 2001-02 NOR 2002-03 NOR 12.1. It was the contention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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