9911796707
TMI Blog2004 (1) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... l Representative states that the AO found that the assessee was employed with M/s G.E. Plastics Europe B.V. (for short GEPE). His services were assigned to the joint venture company, namely M/s G.E. Plastics India Ltd. The taxes on his behalf have however been paid by the Indian company. The assessee, however, claimed exemption of the income which has accrued to him inIndiaas exempt under s. 10(5B) of the Act. He refers to the provision as contained in sub-s. (5B) of s. 10 and stated that the essentials are : (i) that the person should be an individual, (ii) he renders services as a technician, (iii) he is in the employment of any corporation, etc., set up in India for carrying business in India, and (iv) he was not resident in India in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th market where through the complete team with local hires complete the ADC facility to highest standards and excite the industry with high class educational seminars. Programs for accelerated growth with industry focus in market development are in place, GE values and work out programs are introduced and practised. The work experience also shows that he was a director in marketing. The perusal of facts reveal that the assessee is not a technician within the meaning of definition as contained in Explanation to sub-s. (5B) of s. 10 as he does not have specialised knowledge and experience in the field of manufacturing. His present assignment as a director marketing is to excite industry and the joint venture is only for marketing and selling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant s case. Reference was also made to certain advance rulings as under: (1) XYZ, In re (1999) 153 CTR (AAR) 290 : (1999) 237 ITR 428 (AAR); (2) ABC, In re (2000) 158 CTR (AAR) 364 : (2000) 242 ITR 698 (AAR); (3) John A. Sayre, In re (1999) 151 CTR (AAR) 651 : (1999) 236 ITR 652 (AAR). It was, therefore, prayed that the decision taken by the learned CIT(A) needs to be set aside and that the AO may be restored. 4. On the other hand, the learned counsel for the assessee Shri K. Sampath while relying on the decision taken by the learned CIT(A) stated that the Revenue has not brought on record the joint venture agreement to prove that the joint venture is only for the purpose of marketing and selling and not for the purpose of manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reopened at this stage. The learned CIT(A) has concluded that by holding the qualification as a technical person the assessee has worked as a technical manager. The joint venture is only for manufacturing which presumption can be drawn from the approval granted by the CBDT under s. 10(6)(viia) of the IT Act, 1961, in respect of his predecessor Peter Van Damme. The basic point for denying the exemption by the AO is that the assessee has no experience in the field of manufacturing while the learned CIT(A) has already recorded the positive finding based on the material produced before him. In that view of the matter it cannot be said that the learned CIT(A) has erred in coming to a wrong conclusion. His order, therefore, needs to be upheld and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that exemption has to be interpreted strictly and benefit should go to State. Above view also stands fortified by the decision of Hon ble AP High Court in Action For Welfare Awakening In Rural Environment (Aware) vs. Dy. CIT (2003) 183 CTR (AP) 631 : (2003) 263 ITR 13 (AP). 8. In the assessee s case certain conditions are stipulated for grant of exemption under s. 10(5B) of the Act. The employment of the individual who renders services as a technician is an essential condition. Whether the assessee was employed inIndiaor factually was an employee of GE Plastics Europe BV at the relevant time can be delved only from the terms of employment which have not been placed before us by any of the parties, though different claims are being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch payments were not made by the employer. In this case, the AO was persuaded to treat the reimbursement of expenses to the extent of Rs. 75,000 to the appellant on account of party and decoration expenses at his residence, payment for driver, helper, repair of furniture and club membership, etc. The learned CIT(A) found such an expenditure as that of company and there was nothing brought on record by the AO to hold that the expenditure was related to the appellant. No contrary material to such finding was brought on record. In that view of the matter, the deletion of disallowance of Rs. 75,000 made on estimate basis as perquisite does not call for any interference. Ground of the Revenue stands allowed. 11. In the result, the Revenue s a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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