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TMI Blog2009 (7) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of which the question, this appeal had been admitted is as under : "Whether the Tribunal was correct in holding that the assessee is entitled to exemption under section 10(6)(viia)(II) of the Act for the assessment year 1994-95 in respect of a sum of Rs. 11,74,069 which was received by the assessee during the assessment year and correctly treated as part of his total income by the Assessing Officer and brought to tax ?" 3. The Revenue is aggrieved by the reversal of the order passed by the assessing authority and as affirmed by the Tribunal extending the benefit of the provisions of section 10(6)(viia)(II) of the Act which read during the relevant assessment year as under : "Section 10(6)(viia)(II) (viia) where such individual re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year 1994-95. The assessee had been assessed in the status of "not ordinarily resident" for the assessment year in question. 6. It appears that the assessee had in his return for the assessment year in question claimed the benefit of exemption in terms of section 10(6)(viia) of the Act in respect of the amount mentioned above as an amount qualifying for exemption as the assessee had entered into India on September 12, 1990, in the status of a "non-resident" and in terms of the provisions of the beneficial exemption provision, the assessee was entitled to claim exemption in respect of the amount remitted by the employer towards the tax liability of the assessee and tax paid on behalf of the assessee on the premise that the assessee havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption is not March 7, 1993, a date on which it appears the assessee had gone out of India and had re-entered but the initial entry on September 12, 1990, with reference to which the assessee was claiming benefit of section 10(6)(viia) of the Act. 11. In this view of the matter, the Tribunal opined that the assessee did qualify initially when he entered India on September 12, 1990, and also noticed that in none of the last four preceding years the assessee was a resident in India. 12. Accordingly, the Tribunal allowed the appeal and granted the benefit of exemption to the assessee which resulted in the return filed by the assessee being proper and correct. Consequentially, the penalty proceedings also fell to ground. 13. It is because of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial benefit is claimed that an assessee qualifies for the benefit of the provision if in any of the preceding four years the assessee was not a resident and the year in question when the benefit is claimed again the assessee is not a resident and it is not necessary that the assessee should not have been resident in all the four years. 17. However, Sri K. P. Kumar, learned senior counsel clarifies that in so far as the present assessee is concerned, the assessee was not a resident in all the four financial years immediately preceding the financial year in which he arrived in India and at the best he was "not ordinarily resident" and never acquired the status of resident. 18. We have bestowed our attention to the submissions made at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the date September 12, 1990, which was the date which was claimed by the assessee as the date of entry is reckoned in the four preceding financial years, the assessee had the status of a non-resident for four years and, therefore, the question on the issue is that the assessee was definitely not a "resident" in any of the preceding four financial years. When the assessee claims the benefit of the provision based on his entry on September 12, 1990, the other limiting factor which operates on the assessee is to be found in the latter part of the provision which says the benefit can be claimed only up to next 48 months or cannot be extended for a period not exceeding 48 months commencing from the date of his arrival in India. It is for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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