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TMI Blog2015 (11) TMI 1744X X X X Extracts X X X X X X X X Extracts X X X X ..... earned outside India” This finding of fact has not been challenged by the revenue in appeal. The order of the Assessing Officer passed on 11.01.2005 had merged with the order of the Appellate Commissioner dated 01.03.2006. Once such a categorical finding of fact has been recorded, and a conclusion arrived at by the Appellate Commissioner with regard to the consultancy fees having been received by the assessee, which was earned outside India, we are of the view that the same would be a concluded finding of fact, which could be set aside only in an appeal, if the said order was challenged before the Tribunal. Reasoning is a process of conclusion, and once such a conclusion has been arrived at and had become final, the same could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and claimed to be exempted from tax. 2. The present appeal relates to the Assessment year 2002-03. The Assessee had filed his return of income for the said assessment year, which was processed under Section 143(1) of the Income Tax Ac t, 1961 (for short the Act ) and refund of ₹ 7,68,06 0/- was granted on 27.11.2002. However, the case of the assessee was taken up for scrutiny under Section 14 3(3) of the Act and vide order dated 11.01.2005, the claim of the assessee, that he was a non-resident Indian, was not accepted, and the further claim that the consultancy fees earned outside India was exempted from tax, was also rejected. It was also held that the assessee was not eligible for deduction under Section 80RRA of the Act. Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the assessment order, whereby, the entire income earned by the assessee as consultancy service, was subjected to tax. The appeal filed by the assessee was dismissed by the Appellate Commissioner vide order dated 31.03.2008, and the further appeal of the assessee, filed before the Tribunal, was also dismissed on 12.06.2009. Challenging the said orders, this appeal has been filed, raising the following questions of law:- 1. Whether on the facts and circumstances of the case, the appellate tribunal was justified in holding that the consultancy income earned outside India by the appellant shall be liable to tax in India? 2. Whether on the facts and circumstances of the case, the appellate tribunal was justified in coming to conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee as well as Sri.K.V. Aravind, learned counse l for the respondent-Revenue and perused the records. 7. The first three questions raised in this appeal relate to the merits of the case, whereas, last three questions relate to the jurisdiction of the Commissioner to revise the order under Section 263, which has already been confirmed by the Appellate Commissioner and according to the assessee, the initial order of the Assessing Officer could not be said to be prejudicial to the interest of the revenue. 8. Regarding the first three questions, though it has been argued that in view of the status of the assessee having been determined as non-resident Indian and even if the consultancy fees was receive d outside India or within India, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough the order of the Assessing Officer had merge d with the order of the Appellate Commissioner, but s till, since neither the order of the Assessing Officer nor that of the Appellate Commissioner had dealt with the question of consultancy fees or service having been rendered by the assessee outside India, and a finding in that regard had been given by the Assessing Officer without application of mind, the same was erroneous and also prejudicial to the interest of the revenue and thus, passing of the order under Section 263 of the Act was fully justified in law. 11. From the records, what we find is that the Assessing Officer, vide its order dated 11.01.2005, had held, as per the provisions of Section 6 of the Income Tax Act, 1961, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d merged with the order of the Appellate Commissioner dated 01.03.2006. Once such a categorical finding of fact has been recorded, and a conclusion arrived at by the Appellate Commissioner with regard to the consultancy fees having been received by the assessee, which was earned outside India, we are of the view that the same would be a concluded finding of fact, which could be set aside only in an appeal, if the said order was challenged before the Tribunal. 13. Reasoning is a process of conclusion, and once such a conclusion has been arrived at and had become final, the same could not be upset by invoking the provisions of Section 263 of the Act, which could only be invoked, if the order of the Assessing Officer was erroneous insofar a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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