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TMI Blog2016 (8) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... n the judgment of Delhi High Court in case of Balmukund Acharya in [2008 (12) TMI 88 - BOMBAY HIGH COURT ] and held that ground/claim raised before the AO was maintainable and allowed the benefit of section 10(10CC). It is well settled law that assessee is entitled to raise not only additional legal submission before the appellate authorities, but also entitled to raise additional claim before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. We have seen that Ld CIT(A) properly appreciated the provision of section 10(10CC) and accepted the claim of assessee which was denied by the AO on wrong premises, hence, we do not find any merit in this ground raised by the Revenue and the same is dismissed.- Decided in favour of assessee Disallowance of expenses paid to the broker in US for managing the portfolio - Held that:- This ground is directly linked with the ground No.1 raised in the present appeal which we have already decided against the Revenue and in favour of assessee holding that the foreign income to the assessee is not taxable in India. Hence the expenses relating to earning to the foreign income does not requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other grounds: Long-term Capital Gains 1. The learned Commissioner (Appeals) erred in not deciding the following grounds in the appeal: 4. The learned Additional Commissioner erred in computing longterm capital gains on shares of US companies at ₹ 1,18,798. 5. The learned additional Commissioner erred in not allowing indexation benefits while computing the capital gains. The learned Additional Commissioner erred in holding that cost inflation index is not applicable on shares of foreign companies. 2. The learned Commissioner (Appeals) ought to have directed the Additional Commissioner to allow indexation benefits while computing capital gains. The learned Commissioner (Appeals) ought to have held that cost inflation index is applicable on shares of foreign companies. Expenses paid to broker in USA The learned Commissioner (Appeals) erred in not deciding the following ground in the appeal: 6. The learned Additional Commissioner erred in holding that expenditure of ₹ 2,38,709/- paid to the broker in USA for managing the portfolio is not deductible in computing income under the head Income from Other Sources . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of AO, the assessee filed appeal before the CIT(A). In appeal the assessee was allowed exemption u/s 10(10CC) and also deleted the addition of capital gain and income from other sources. Aggrieved by the order of CIT(A), the Revenue has filed the present appeal before us. And the assessee filed the present C.O.in support of order of CIT(A). 5. First we shall take up the Grounds raised in ITA No. 6045/M/10 filed by Revenue. First Grounds for our consideration is deleting the overseas income i.e. interest income (Rs.3,28,765/-) dividend income (Rs.9,60,167/-) and capital gain (Rs.l,18,798/-) as taxable income in India. Ld. Departmental Representative (DR) for Revenue supported the order of AO and argued that order of CIT(A) be reversed and the order of AO be restored. Ld AR for Authorised Representative (AR) of the assessee argued that assessee is an US as well as Germany national. The assessee is a resident of USA. His worldwide income is subjected to tax in USA. The assessee being an employee of Siemens AG, Germany and was on deputation of M/s Siemens Ltd. India during the relevant period. The return was inadvertently finalized on the basis of assessee resident but not ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permanent home available in either state, he shall be deemed to be resident of the state in which he has a habitual abode; (c) If he has an habitual abode in both the States or in neither of them. He shall be deemed to be resident of the state in which he is a national; (d) If he is a national of both states or of neither of them, then competent authorities of the contracting States shall settle the question by mutual agreement. In the assessment proceedings the assessee claimed that he should be treated as non-resident under the Income-Tax Act, irrespective of his stay in India and relied upon the decision of Hon ble Supreme Court in case of CIT vs. P.V.A.I. Kulandagan Chettiar (2004) [(267 ITR 655(SC)]. However, the AO instead concluded that nowhere in Indo US Treaty, it is stated that a resident in USA cannot be an ordinary resident in India based on his stay in India. The CIT(A) while considering the status of assessee observed that from the perusal of Indo-US Tax returns filed by assessee, the assessee along with details of assets and liability has shown one house in Hamburg, Germany, one house in San Francisco USA, jointly owned a house in Stamford USA . Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in ITAT, Delhi in RBF Rig Corporation LLC (297 ITR (AT to 228 Del.) Assessee could not file revised return within the time prescribed. The CIT(A) while considering the ratio and the case of special bench in case of RBF Rig Corporation LLC (supra) held that tax borne by employer is paid directly to the tax authority and there is no payment to the tax employee, the tax so borne is a non-monetary transaction and the same is exempted u/s 10(10CC) of the Act, and further relied upon the judgment of Delhi High Court in case of Balmukund Acharya in ITA No. 217/2001 and held that ground/claim raised before the AO was maintainable and allowed the benefit of section 10(10CC). It is well settled law that assessee is entitled to raise not only additional legal submission before the appellate authorities, but also entitled to raise additional claim before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. We have seen that Ld CIT(A) properly appreciated the provision of section 10(10CC) and accepted the claim of assessee which was denied by the AO on wrong premises, hence, we do not find any merit in this ground raised by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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