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TMI Blog2015 (6) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... revision. In the present case, the ld. CIT has exercised his power in the context of tax credit claimed by the assessee under section 90 of the Act. The status of the assessee as to whether resident or non-resident is not before the CIT. CIT correctly exercised his power under section 263 and again set aside the order passed by the Assessing Officer. - Decided against assessee. - I.T.A.Nos.2149, 2150, 2151 & 2152/Mds/2013 & I.T.A. Nos. 1472, 1473, 1474 and 1475/Mds/2014 - - - Dated:- 25-6-2015 - Shri Chandra Poojari, Accountant Member Shri V. Durga Rao, Judicial Member Appellant by : Shri R. Kumar, Advocate Respondent by : Shri S. Das Gupta, JCIT O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: Out of these eight appeals filed by the same assessee four appeals [in I.T.A. Nos. 2149, 2150, 2151 2152/Mds/2013] are directed against the different orders of the ld. Commissioner of Income Tax (Appeals) (Central) I, Chennai, all dated 30.09.2013 relevant to the assessment years 2001-02, 2002-03, 2003-04 and 2004-05 and the other four appeals [in I.T.A. Nos. 1472, 1473, 1474 and 1475/Mds/2014] are directed against the different orders of the ld. Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment proceedings, the assessee has made a claim of having earned income abroad, which was subjected to taxation by Canada Revenue Agency and had claimed tax credit of ₹ 18,95,279/- in respect of the income included in the global income brought to tax. 4. The Assessing Officer had allowed the claim of the assessee prima facie on the basis of the documentary evidence submitted by the assessee. The ld. CIT further observed that after a detailed enquiry and information available on record shows that the claim of the assessee having earned income in Canada and on which he had paid taxes were found to be false. Therefore, the ld. CIT came to a conclusion that the assessee is not entitled for the tax credit as claimed by the assessee and observed that the prima facie order passed by the Assessing Officer is erroneous and prejudicial to the interest of Revenue and show caused the assessee as to why the tax credit given in the assessment order may not be withdrawn. In response to that, the assessee has furnished the following information vide his letter dated 13.01.2011: (i) Copies of the Passport issued by the Canadian Government for the period 13.03.1995 to 13.03.2000, 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was mistakenly mentioned as Resident and he filed some documents before the Assessing Officer. 6. In the assessment order, the Assessing Officer has observed that as part of the proceedings under section 263, the assessee had contended that in the return of income filed prior to the date of search and in the return filed after the date of search, the status was mistakenly mentioned as Resident. In support of his contention, he had filed copies of the passport for the relevant previous years which were forwarded along with the order under section 263 dated 30.03.2011. As part of the ensuing proceedings, the assessee filed once again copies of the passports for the relevant previous years together with the original passports (3 Nos.) for perusal and return. The relevant details regarding the period of stay of the assessee right from the assessment year 1996-97 were verified. The said details form part of the assessment order as Annexure B. On the basis of the period of stay of the assessee in India during the relevant previous year as well as in the earlier previous years, it is clear that the status of the assessee is non-resident . Therefore, the Assessing Officer finally c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2014. 10. On being aggrieved, the assessee carried the matter in appeal before the Tribunal. 11. The ld. Counsel for the assessee has submitted that the order passed by the Assessing Officer is not erroneous or prejudice to the interest of the Revenue. The ld. CIT has set aside the assessment order on the ground that the proceedings under section 263 are getting time barred. Therefore, it cannot be said that the order passed by the Assessing Officer is erroneous and prejudice to the interest of the Revenue. He further submitted that once the ld. CIT set aside the order of the Assessing Officer and directed him to pass a fresh order in accordance with law, it is open to the Assessing Officer to consider all the issues and accordingly, the Assessing Officer has rightly decided the status of the assessee as non-resident. For that, he relied on the decision in the case of CIT v. Geo Industries Insecticides (I) Pvt. Ltd. 234 ITR 541 (Mad). 12. On the other hand, the ld. DR has submitted that the ld. CIT, while exercising power under section 263 of the Act, remitted the matter back to the Assessing Officer in the context of tax credit claimed by the assessee under section 90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer, after considering the passport copies, came to a conclusion that the assessee is a non-resident. 15. The assessee has filed the return of income as Resident and subsequently also he filed the revised return during the course of assessment proceedings claiming as resident. When the order of the Assessing Officer was set aside in respect of issue is relating to the claim of tax credit under section 90 of the Act, the Assessing Officer went altogether into a different footing and changed the status of the assessee as non-resident. The ld. CIT has remitted the matter back to the Assessing Officer specifically with regard to the claim of tax credit under section 90 of the Act and when the information filed by the assessee was found false, again fresh information was filed and the Assessing Officer was directed to pass fresh assessment order after receiving details from Canada Revenue Agency. The Assessing Officer, without following the directions of the ld. CIT, by simply changing the status of the assessee, allowed the claim of the assessee, in our opinion, the order passed by the Assessing Officer dated 14.12.2011 is beyond his jurisdiction and the Assessing Officer excee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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