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2013 (8) TMI 872 - AT - Income TaxRevision u/s 263 - Assessing Officer did not examine the status of the assessee in the course of assessment proceedings - taxation of Indian salary along with U.S.A. salary - global income rectification of the order to exclude double addition as the global income of ₹ 7,18,15,365 taken as income from the U.S.A. in fact includes the Indian salary already brought to tax at ₹ 3,24,45,350 - Held that:- If the proceedings under section 263 are on assessment order dated December 29, 2008, obviously there cannot be any prejudice caused to the Revenue, as the Assessing Officer not only brought to tax the Indian component but also the entire global component of the salary. Therefore, the proceedings under section 263 can only be considered to be against the order dated February 24, 2009 under section 154 in which the Assessing Officer by mistake excluded ₹ 7,18,15,365 instead of ₹ 3,24,45,350 included in the above amount.Since the proceedings are initiated against the order under section 154 dated February 24, 2009, question of considering amount of ₹ 53,19,253 does not arise at all, as issue of perquisite was originally concluded by the order dated January 24, 2006 and subsequent proceedings under section 263 did not make it as an issue. Therefore, CIT(A) raising an issue of taxability of perquisite out of the entire tax deducted at source does not arise at all, as this is not an issue considered in the order under section 154. Therefore to that extent the direction of the Commissioner of Income-tax to bring the amount to tax is beyond jurisdiction. Even on the merits, the assessee, from the beginning has submitted before the Assessing Officer that the tax refund if any does not belong to him and belongs to employer. Based on the above submissions, the issue of perquisite would not have been raised by the Assessing Officer. Be that as it may, the assessee placed evidence on record that already refund to the extent of ₹ 40,41,172 was returned to the employer and balance refund, if any arising to the assessee, would also be returned to the employer. Therefore, in our opinion, there is no error in the order and certainly no prejudice to the Revenue. Whether there is any prejudice caused to the Revenue in the order under section 154 - Held that:- The amendment to section 6(6)(a) has come with effect from April 1, 2004, therefore, the same is not applicable to the assessment year under consideration. In view of the interpretation given in the case of Pradip J. Mehta v. CIT [2008 (4) TMI 6 - Supreme Court]to the then existing law, in a way the Assessing Officer excluded the income earned outside India and ultimately the assessee was taxed in the income earned in India. Therefore, to that extent there is no prejudice caused to the Revenue on the basis of interpretation of law relevant for the assessment year 2003-04. Therefore, in our opinion the order under section 263 by the Commissioner of Income-tax is bad in law even though there was a mistake committed in the order under section 154 as stated earlier. - Decided in favour of assesse.
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