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TMI Blog2015 (11) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 14.07.2014 of CIT(A), Noida pertaining to 2009- 10 assessment year on the following grounds:- 1. That on the facts and on the circumstances of the case, the L'd Commissioner of Income Tax(Appeals) has erred in summarily upholding the disallowances made by the Assessing Officer. The L'd Assessing Officer has invoked the provisions of section 115D and consequentially denied the deductions as claimed by assessee U/S 57 and 80C at ₹ 1,77,287/- and ₹ 1,00,000/- respectively. The Observations made, Inferences drawn and findings recorded in this regard, while confirming the additions made are arbitrary, illegal and not consonant with the facts and law. 2. The L'd Commissioner of Income Tax (Appeals) as well as the Assessing Officer has failed to appreciate that in the new annexure less returns , there is no space/column, wherein assessee could mention her declaration, that assessee wants not to be governed by the provisions of chapter XII-A . 3. The L'd Commissioner of Income Tax ( Appeals) as well as the Assessing Officer has failed to appreciate that by filing the return and claiming the deductions assessee has given deemed/implied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the above, Your Honours may be pleased to grant any or all statutory permissible deductions allowable to me as per the provisions of the Income Tax Act, 1961, taking into account the refund of ₹ 1,45,220/- claimed by me. 3. However considering the provision of section 115D, 115E and 115-I, the AO was of the view that section 115D overrides all the provisions of I.T.Act and only at the written option exercised by the non-resident Indian assessee in his return of income under section 115-I, the assessee may elect not be governed by the special provisions of Chapter XII-A. Since the assessee was found not to have exercised her option for not being governed by the special provisions of this Chapter in return of income filed by her the income was assessed at ₹ 4,13,758/- by disallowing deduction claimed of ₹ 1,77,287/- u/s 57 and ₹ 1,00,000/- by disallowing deduction claimed under VI-A. 4. Aggrieved by this the assessee went in appeal before the CIT(A). 5. The arguments advanced before the AO were reiterated. For-readyreference, these are reproduced hereunder:- 2. FIRST Ground For Appeal a. Chapter XII-A, section 115-I allows the non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible to file any such election or statement with the income tax return given the new requirements of the income tax rules as well as annexure-less, paperless formats and e-filing rules. j. I am attaching a copy of such a declaration as Annex 1 to this document. k. If Chapter XII, section 115 G is applied to my tax return, I was not required to file ANY income tax return. I. The fact that I filed an Income Tax Return is proof that I was electing not to be governed by Chapter XII. This should be considered as an implicit election since it is not possible to furnish a formal written election ( declaration therein ) any more after the introduction of the new rules, annexure-less rules, paperless forms and e-filing. m. Therefore, the denial of the deductions (see 1 (d) above) under Chapter XII should be reversed since I would have been implicitly deemed to elect not to be governed by this Chapter Consequentially, the deduction U/S 57 as well as the deduction U/S 80C should be allowed and tax should be calculated as per the slab rate. 3. SECOND Ground For Appeal a. The Assessing Officer has cited Chapter XII A Section 115-D and denied the deduction f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which 1 gave to my husband Professor Gurkirpal Singh Sehgal, has been taxed in the return of income filed by him. If 1 am disallowed this deduction and this amount is added back into my income, it is effectively a double taxation of the said sum - once in my husband's return and then again in mine. I realize that there may not be a specific law that prevents this, but it is certainly against the principles of fairness and natural justice. It is the duty of the State to collect fair taxes. 1 humbly submit that the deduction of ₹ 1,77,287 be kindly allowed on this ground alone. 6. FOURTH - inaccuracies in a. In point 8 of her order, the Assessing Office states: Section 115Eof the I. T. Act prescribes the rates of tax chargeable on certain incomes of non-resident assessee including rate of 20% chargeable on investment income. However, as per provisions of section 151-I of the I.T. Act. a non-resident Indian assessee may elect not to be governed by the provisions of this special Chapter XII-A for any assessment year by furnishing his return of income for that assessment year under section 139 declaring therein that the provisions of this chapter shall not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has mentioned that assessee has failed to me a written declaration as per section 115I, alongwith the return of income wherein he has to declare that the provisions of chapter XIIA i.e. section 115D be not applicable to him and hence the claim of interest paid as well as deduction claimed u/s 80C has not been allowed to the assessee. Further tax at flat rate of 20% has been levied. In this respect, I submit here that with effect from 01.04.1990, an amendment has been made in section 115I, wherein the express provisions of filing the declaration in writing have been removed. However, by filing the return and claiming the deduction of interest paid as well as deduction u/s80C, assessee has given an implied declaration that the provisions of section 115D are not applicable to him. It is therefore humbly requested that the appeal of the assessee be kindly allowed and the deduction of interest paid be as well as deduction claimed u/s 80C be also allowed. Further directions be issued to calculate tax at normal rates instead of flat 20% as done by Assessing Officer. 6. In the said background, the finding arrived at in pages 12-14 it was submitted by the ld. AR i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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