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Sonam Topgay Bhutia Versus D.C.I.T, Circle-2, Siliguri

2012 (1) TMI 336 - ITAT KOLKATA

I.T.A No. 331/Kol/2011 - Dated:- 31-1-2012 - Sri S.V Mehrotra, AM & Sri N.Vijaykumaran, JM For the Appellant : Shri Subash Agarwal, ld.AR For the Respondent : Shri S.K. Roy, ld.DR ORDER Shri S.V Mehrotra, Accountant Member : This is an appeal filed by the assessee against the order of the learned Commissioner of Incometax (Appeals), Siliguri dated 20/10/2010 for the assessment year 2004-05. 2. Brief facts are that the assessee, individual, in the relevant assessment year, carried on the busi .....

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c Works Deptt.[ CPWD], Gangtok. The return for the assessment year 2004-05 was filed on 28-10-2004. It was further pointed out that during the pendency of appeal, section 10(26AAA) was inserted in the Income-tax Act, 1961 by the Finance Act, 2008 w.e.f. 01-04-1990 by which all the individuals being Sikkimes were not liable to pay Income-tax under the provisions of the Income-tax Act, 1961 on the income arising to him a) from any source in the State of Sikkim and b) by way of dividend or interest .....

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ld.AR and also perused the assessment order. Apparently, there is no dispute that the income of the assessee was accrued in Sikkim and the assessee is a Sikkim subject. But at the time of assessment, the assessee never raised such issue before the ld.AO. This later development was not before the AO. Now, the assessee claimed the benefit of Sec. 10(26AAA) on the basis of insertion of this section by the Income-tax Act, 1961 by the Finance Act, 2008 w.e.f 01-04-1990. To get the object of this sec .....

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tands confirmed. 4. Being aggrieved by the said order of the learned Commissioner of Income-tax (Appeals), now the assessee is in appeal before us and inter-alia, has taken following grounds of appeal:- 1. That the Ld. CIT (A) has erred in confirming the order passed by the AO. 2. That the Ld. C.I.T. (A) erred in denying the benefit of section 10 (26AAA) inserted by the Finance Act, 2008 w.e.f. 01.04.1990 to the appellant though he admitted that the appellant fulfilled all the conditions laid do .....

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d no. 3 taken in the Memorandum of Appeal filed before him. 5. That as the order of the Ld. C.I.T.(A) is devoid of merit, and bad in law, the same should be quashed and your appellant be given such relief(s) as prayed for. 6. That the appellant craves your ld. Permission to add, amend and modify the above grounds on or before the date of hearing of the appeal. 5. The ld. Counsel for the assessee has reiterated the submissions as made before the ld. Commissioner of Income-tax (Appeals). He furthe .....

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the Tribunal for the purposes of assessing the tax liability of the assessee for the assessment year which was under consideration before the Tribunal. In these circumstances, it cannot be contended on behalf of the Revenue that the assessment proceedings come to an end when the assessment order is framed. The contention on behalf of the Revenue to equate the assessment order with assessment proceeding is based on a fallacious premise. 6. The ld.DR has relied on the orders of the authorities be .....

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ax (Appeals) on 1-2-2007 and decided on 28-02-2010. Thus, during the pendency of the appeal section 10(26AAA) was inserted with retrospective effect from 1-4-90, which covered the assessment year 2004- 05. Thus, assessee was eligible for getting exemption u/s. 10(26AAA). The only objection of the learned Commissioner of Income-tax (Appeals) was that the assessee should have approached the Assessing Officer because the issue did not arise out of the assessment order. However, in our opinion since .....

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