ACIT, New Delhi v. Sh. Harashima Naoki Tashio, New Delhi

ITA 4634/DEL/2009 | 2004-2005
Pronouncement Date: 08-02-2010 | Result: Dismissed

Appeal Details

RSA Number 463420114 RSA 2009
Assessee PAN RUARY2010G
Bench Delhi
Appeal Number ITA 4634/DEL/2009
Duration Of Justice 2 month(s)
Appellant ACIT, New Delhi
Respondent Sh. Harashima Naoki Tashio, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 08-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 08-02-2010
Assessment Year 2004-2005
Appeal Filed On 08-12-2009
Judgment Text
ITA NO.4634/D/09 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI VIMAL GANDHI HONBLE PRESIDENT AND SHRI K.D. RANJAN ACCOUNTANT MEMBER ITA NO. 4634/DEL/09 ASSTT. YEAR: 2004-05 ASSTT.COMMISSIONER OF INCOME TAX VS MR. HAR ASHIMA NAOKI TASHIO CIRCLE 47(1) NEW DELHI. C/O MITSUI & CO. INDIA P.LTD. THE METROPOLITAN CENTRE HOTEL NIKKO BANGLA SAHIB ROAD NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI D.N. KAR CIT DR RESPONDENT BY: SHRI PIYUSH KAUSHIK O R D E R PER VIMAL GANDHI PRESIDENT THIS APPEAL BY THE REVENUE FOR ASSTT. YEAR 2004-05 IS DIRECTED AGAINST ORDER OF CIT(A) ALLOWING DEDUCTION OF RS.5 00 629/- ON ACCOUNT OF EMPLOYERS CONTRIBUTION TOWARD SOCIAL SECURITY SCHE ME. 2. THE FACTS OF THE CASE ARE THAT ASSESSEE IS NOT A N ORDINARY RESIDENT OF INDIA AND WORKED AS GENERAL MANAGER WITH M/S MITSUI & CO. INDIA PRIVATE LTD. IN THE PERIOD RELEVANT TO ASSESSMENT YEAR UNDE R CONSIDERATION. THE ASSESSEE SUBMITTED RETURN DECLARING INCOME OF RS.1 47 95 780/ IN THE COURSE OF ASSESSMENT AO ADDED A SUM OF RS. 5 00 629 REPRE SENTING CONTRIBUTION MADE BY THE ASSESSEES EMPLOYER IN JAPAN (ASSESSEE S OWN COUNTRY) TOWARD ITA NO.4634/D/09 2 SOCIAL SECURITY HEALTH INSURANCE ETC. TO THE INCOM E OF THE ASSESSEE APPELLANT. ON APPEAL IT WAS CONTENDED ON BEHALF OF THE APPELL ANT THAT ABOVE AMOUNTS WERE CONTRIBUTED BY THE EMPLOYER UNDER STATUTORY PR OVISION AND CONTRIBUTION DID NOT GIVE ANY VESTED RIGHT TO THE APPELLANT. TH E ASSESSEE MAY OR MAY NOT GET ANY BENEFIT DEPENDING UPON HAPPENING OR NON-HAP PENING OF AN EVENT WHICH IS BEYOND THE CONTROL OF THE APPELLANT. IT W AS ONLY A CONTINGENT BENEFIT TO THE ASSESSEE. THE AMOUNT PAID BY THE EM PLOYER COULD NOT BE TREATED AS A PERQUISITE IN THE HANDS OF THE APPELLA NT AND LIABLE TO TAX. THE LD. CIT(A) EXAMINED THE SCHEME UNDER WHICH PAYMENT WAS MADE AND FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT VS ERIC MATTHEW GOTTESMAN (2207) 15 SOT 301 (DEL) DELETED THE ADDITION. 3. THE REVENUE IS AGGRIEVED AND HAS BROUGHT THE ISS UE IN APPEAL. LD. COUNSEL FOR THE ASSESSEE APPELLANT POINTED OUT THAT MATTER IN ISSUE IS FULLY COVERED IN FAVOUR OF THE ASSESSEE AS PER THE FOLLOW ING DECISIONS OF THE TRIBUNAL:- 1. ACIT VS ERIC MATTHEW GOTTESMAN (2207) 15 SOT 301 (DEL) 2. ACIT CIRCLE 47(1) VS HIDEKI ISHIHARA IN ITA NO . 1906/DEL/08 DATED 31.12.08 3. ITO VS LUKAS FOLE (2009) 124 TTJ (PUNE) 965 4. GALLOTTI RAOUL VS ACIT 61 ITD (BOM.) 453 ITA NO.4634/D/09 3 4. IN ALL THE ABOVE CASES SIMILAR CONTRIBUTION TO SOCIAL SECURITY MADE BY THE EMPLOYER IN THE HOME COUNTRY OF THE FOREIGN NAT IONAL WAS HELD TO BE NOT TAXABLE AS A PERQUISITE. 5. LD. COUNSEL ALSO SUBMITTED THAT TAX EFFECT IN TH IS CASE WAS MERELY RS.1 65 208 IF INTEREST CHARGED U/S 234B IS NOT TAK EN INTO CONSIDERATION. IT WAS ARGUED THAT APPEAL FILED BY THE REVENUE WAS NOT COMPETENT IN THE LIGHT OF CBDT INSTRUCTION NO.5/2008 DATED 15.5.2008. 6. LD. DR WHILE ARGUING HIS APPEAL VEHEMENTLY SUBMI TTED THAT ASSESSEE HAD NOT APPEARED BEFORE THE LD. CIT(A) ON VARIOUS D ATES AS RECORDED IN PARA 2 OF THE IMPUGNED ORDER. IT IS FURTHER RECORDED A PPELLANT IS NOT INTERESTED IN AVAILING OPPORTUNITY OF BEING HEARD. IN SPITE OF ABOVE LD. CIT(A) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. LD. D R ALSO OPPOSED ASSESSEES CALCULATION THAT TAX EFFECT IN THE APPEAL IN THE LI GHT OF INSTRUCTION NO.5/2008 DATED 15.5.2008 WAS LESS THAN RS. 2 LAKH. IT WAS A RGUED THAT THE ASSESSEE SHOULD HAVE FILED COPY OF NOTICE OF DEMAND TO SHOW THAT TAX EFFECT WAS LESS THAN RS. 2 LAKH. IT HAS DELIBERATELY NOT BEEN FILE D. ON THE QUESTION THAT MATTER IN ISSUE IS FULLY COVERED IN FAVOUR OF THE A SSESSEE AS PER FOUR DECISIONS OF THE TRIBUNAL THE LD. DR SUBMITTED THAT TIME BE GRANTED TO THE REVENUE TO GO THROUGH ABOVE DECISIONS AND FOR THAT MATTER THE CASE BE ADJOURNED. ITA NO.4634/D/09 4 7. WE HAVE GIVEN CAREFUL THOUGHT TO THE RIVAL SUBMI SSIONS OF THE PARTIES. THE MATTER IN ISSUE IS CLEARLY COVERED IN FAVOUR OF THE ASSESSEE AS PER FOUR DECISIONS OF THE TRIBUNAL. ABOVE CITED DECISIONS A RE BINDING ON US AND NO DISTINGUISHING FEATURE COULD BE POINTED OUT BY THE LD. DR APPEARING FOR THE REVENUE. HIS REQUEST THAT HE BE GIVEN TIME TO DIST INGUISH DECISIONS OR TO POINT OUT SOME CONTRARY VIEW WAS NOT REASONABLE AND ACCORDINGLY REJECTED DURING THE COURSE OF HEARING. THE OTHER OBJECTION THAT ASSESSEE NOT HAVING APPEARED BEFORE THE LD. CIT(A) THE MATTER SHOULD H AVE BEEN DECIDED AGAINST THE ASSESSEE IS ALSO WITHOUT ANY SUBSTANCE. IT IS WELL-ACCEPTED THAT EVEN IN EX PARTE CASES THE LD. CIT(A) IS REQUIRED TO DECID E APPEAL ON MERIT AFTER CONSIDERING MATERIAL AVAILABLE ON RECORD. THEREFOR E LD. CIT(A) IN HOLDING THAT THE MATTER IN ISSUE WAS FULLY COVERED BY THE D ECISION OF THE TRIBUNAL DID NOT COMMIT ANY ERROR OF LAW. WE HAVE ALREADY EXAMI NED AND FOUND THAT THE MATTER IN ISSUE IS FULLY COVERED IN FAVOUR OF THE A SSESSEE. 8. THE OTHER CONTENTION ADVANCED BEFORE US THAT TAX EFFECT IS LESS THAN RS.2 LAKH CANNOT BE DECIDED AS DETAILED CALCULATION S HAVE NOT BEEN FILED BEFORE US. IT IS NO DOUBT TRUE THAT INTEREST FOR C OMPUTING TAX EFFECT IS NOT TO BE TAKEN INTO ACCOUNT BUT HOW MUCH INTEREST HAS BEE N CHARGED IS NOT AVAILABLE ON RECORD. LD. COUNSEL FOR THE ASSESSEE IN OUR VIEW SHOULD HAVE PLACED COPIES OF NOTICE OF DEMAND OR SOME OTHER AUT HENTIC CALCULATION TO THE ITA NO.4634/D/09 5 ABOVE EFFECT. THIS HAS NOT BEEN DONE. WE ARE THER EFORE NOT IN A POSITION TO HOLD THAT TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS. 2 LAKH OR LESS IN THIS CASE. THE LD. CIT(A) AS PER THE IMPUGNED ORDER HAS GIVEN FIGURE OF INCOME TAX DETERMINED AT RS.3 27 947. 9. IN THE LIGHT OF ABOVE DISCUSSION WE DO NOT FIND ANY SUBSTANCE IN THIS APPEAL AND REJECT THE SAME. ORDER PRONOUNCED IN THE OPEN COURT DURING THE COURS E OF HEARING ON 8.2.2010. SD/- SD/- ( K.D. RANJAN) ( VIMAL GANDHI ) ACCOUNTANT MEMBER PRESIDENT DT. 8 TH FEBRUARY 2010 GS COPY FORWARDED TO:- 1. ACIT CIRCLE 47(1) NEW DELHI. 2. MR. HARASHIMA NAOKI TASHIO NEW DELHI 3. CIT(A)-XXX NEW DELHI. 4. CIT 5. DR BY ORDER DY.REGISTRAR