TMI Blog2023 (11) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... idence are necessary for just and fair disposal of the proceedings, then those documents are required to be admitted. The above said principle has been duly incorporated in Rule 29 of the ITAT Rules. Having admitted the documents filed by the assessee which are in the nature of additional documents which show that the assessee was tax resident in USA during the relevant assessment year. Accordingly, we remand back the matter to the file of Assessing Officer with a direction to consider the Tax Residence Certificate and decide the issue afresh and pass a reasoned speaking order after affording of opportunities of hearing to the assessee in accordance with law. Appeal of assessee is allowed for statistical purposes. - Shri R.K. Panda, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s erred in law in not appreciating that, once the income is not taxable under ITA, 1961, there is no need to refer to DTAA. 4. The learned lower IT authorities erred in not deliberating / not following the various judicial precedents on the identical points/issue involved therein. The learned lower IT authorities further erred in not deliberating / not adopting views of parallel DRP authorities on exact identical points / issue. Tax Residency Certificate (TRC) is not mandatory for claiming DTAA benefit 5. The learned lower IT authorities erred in law and on fact in holding that TRC is a mandatory condition for claiming the DTAA benefit between India and USA. 6. While arriving at the erroneous conclusion of insisting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to original return and large refund being claimed in the revised return, salary income shown in ITR was less than salary income as per 26AS, Salary income in TDS Schedule was higher than salary income shown, etc. Hence, notice u/s 143(2) and 142(1) of the Act were issued and served on the assessee by NFAC. In response, the assessee filed reply and submitted that his status was non-resident. The AO after examining the details furnished and the submissions made disallowed the claim of exemption of Rs. 24,50,291/- as the assessee had failed to submit Tax Residency Certificate as mandated under sec.90(4) of the I.T. Act,1961 and added back to the returned income. 4. Feeling aggrieved with the draft assessment order, assessee preferred an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxation Avoidance Agreement (DTAA) The relevant provisions of Sec 90(4) are reproduced he as under : (4) An assessee, not being a resident, to whom an agreement referred to in subsection (1) applies shall not be4 titled to claim any relief-under such agreement unless a certificate of his being a resident in any country outside India or specified territory outside India as the case may be, is obtained by him from the-Government of that country, or specified territory . 5.5 In the said section it is mentioned that, unless a certificate of residence i.e., TRC is obtained by the assessee, he shall not be entitled to claim any relief. In the instant case, the assessee could not submit the said certificate (TRC), hence as per the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra, the ld. DR relied upon the orders passed by the lower authorities. 8. We have heard the rival contentions of the parties and perused the material available on record. The sole reason for denying relief to the assessee as per the Assessing Officer in Para 5.4 and 5.5 supra and DRP in para 5.2.5 and 5.2.6 was non-production of Tax Residency Certificate by the assessee from the USA. 9. As stated hereinabove, the assessee has filed an application for admission of additional documents and Tax Residency Certificates for Callender Years 2019 and 2020, placed at Pages 182 to 184 of the paper book and also provided the reasons for not furnishing the said evidence at assessment / appellate stage. In our view, the law is fairly settled that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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