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TMI Blog2025 (1) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the decision of Smt. Sumana Bandopadhyay Another [ 2017 (7) TMI 503 - CALCUTTA HIGH COURT] Thus income is held to be not taxable merely because it is credited in the NRE account of the assessee and the findings of the Ld. CIT(A) in this regard are reversed. Decided in favour of assessee. - Sri Pradip Kumar Choubey, Judicial Member And Sri Rakesh Mishra, Accountant Member For the Assessee : Sumanta Saha, AR Kirti Kapoor, AR. For the Department : Pradip Kumar Biswas, Add. CIT. ORDER PER BENCH: Both the appeals filed by the assessee pertaining to the Assessment Years (in short AY/AYs ) 2012-13 2014-15 are directed against the separate orders passed u/s 250 of the Income Tax Act, 1961 (in short, the Act ) by the Commissioner of Income Tax (Appeals)-22, Kolkata [hereinafter referred to as the ld. CIT(A) ] dated 14.02.2017 30.03.2017 respectively. Since the issues raised in both these appeals are common and the facts are identical, therefore, they were heard together and are being decided vide this common order for the sake of convenience and brevity. 1.1. The Registry has informed that both the appeals filed by the assessee are barred by limitation of time by 2573 and 2529 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is tabulated here below. Particulars Dates Rectification Petition Filed with the circle office of the DCIT 10.03.2017 Rectification Petition Filed with the CIT (A) 27.03.2017 Rectification Petition Filed with the CIT (A) based on the CBDT circular No. 13/2017 dated 11.04.2017 17.04.2017 An updation to the rectification filed 18.07.2017 Physical rectification request submitted with the CIT (A) along with all the supporting documents submitted 22.03.2021 24.03.2021 Again, a rectification petition was filed with the jurisdictional office 16.01.2024 The assessee has diligently pursued all available avenues to adhere to the corrective measures mandated by the provisions of the Income Tax Act. However, rectification of the order has not been possible from your office despite our efforts. At present, the assessee is unable to file the rectification petition on the income tax portal as the rectification rights has been transferred to the jurisdictional AO. Having explored all possible avenues, the taxpayer now intends to appeal to the ITAT as the sole recourse to mitigate the demand and rectify the aforementioned order. While we acknowledge a significant delay in approaching the ITAT, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case learned CIT(A) erred by confirming the order of the Learned AO, ignoring undisputed facts that the assessee was an NRI, worked out of India, the salary was earned, accrued received out of India and the same being credited by the employer in their books of account maintained out of India in favour of assessee, in foreign exchange, and after such receipt out of India, a part of salary was remitted in foreign exchange amounting to USD 84580.16 and then credited in NRE Bank account in India in Indian Rupees by the bank. 2. For that learned CIT(A) was wrong in holding that the amount credited in the NRE Bank account on conversion of salary remitted from abroad, in foreign exchange was received in India and was taxable as per S. 5(2)(a) of the Income-tax Act, 1961. 3. For that findings of learned CIT(A) are wrong and contrary to the law as laid down in the case of CIT Versus Ogale Glass Works Limited [1954] 25 ITR 529. 4. For that applying the law laid down in the case of Ogale Glass (supra.) learned AO may be directed to delete the addition on account of salary remitted and then credited in NRE Bank account in India amounting to Rs. 4078283/-. 5. For that desp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. AO. Aggrieved with the order of the Ld. CIT(A) where part relief was allowed on other issues, the assessee has filed the appeal before the Tribunal. 4. In the statement of facts, the assessee has relied upon several judicial pronouncements and has also enclosed a copy of the Circular No. 13/2017 along with the Corrigendum to the Circular. 5. The assessee filed a rectification petition u/s 154 of the Act on 27.03.2017 by relying upon the decision in the case of CIT Vs. Ogale Glass Works Ltd. [1954] 25 ITR 529 (SC) and attaching the Circular No. 13/2017 dated 11.04.2017 and corrigendum to the Circular No. 13/2017 wherein line 4 of paragraph 2 of the Circular, foreign ship was to be read as foreign going ship (with Indian flag or foreign going flag) . Since the rectification petition has not been decided, therefore, the assessee has filed the appeal belatedly. 6. Rival contentions were heard and the submissions made and the record have been examined. The Ld. CIT(A) while deciding the appeal had issued directions to the Ld. AO to verify the claim of the assessee that the total salary income of ₹44,60,630 was received, instead of the income returned at ₹47,76,015 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide circular No. 17/2017 mentions that in Line 4 of Paragraph No. 2 of the captioned Circular, the word foreign ship may be read as foreign going ship (with Indian flag or foreign flag) . 7. In view of the CBDT Circular, the assessee is entitled to the claim of relief from the applicability of the provisions of section 5(2)(a) of the Act, which is also allowable to the income accrued outside India in view of the decision of the jurisdictional High Court in the case of Smt. Sumana Bandopadhyay Another Vs The Deputy Director of Income Tax (International Taxation) GA 3745 of 2016, ITAT 374 of 2016 reported in 2017(7) TMI 503-Calcutta High Court wherein it is held that We concur with the ratio of the decision of the Karnataka High Court and in our opinion the interpretation be given to sub Section (b) of Section 5(2) of the Act would also apply to Section 5(2)(a) of the Act. The Circular is clarificatory in nature and is applicable for construing the aforesaid provision for the relevant assessment year. In our opinion the authorities under the Income Tax Act did not properly apply the provisions of law to the case of the assessee. We are of the view that the Assessing Officer was wro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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