9911796707
TMI Blog2014 (12) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... ployment outside India and in a peculiar circumstance, when his stay in India during the relevant period was only 68 days which is much less than the period of 182 days as per statutory provisions of the Act, then the assessee cannot be treated as resident of India and his status would be of non-resident Indian for the purpose of levying of tax as per provisions of the Act. The AO wrongly denied relief for the assessee and made additions on the basis of misinterpretation of facts – CIT(A) granted relief for the assessee by considering agreement of employment dated 31.5.2004, other relevant documents and by properly interpreting the provisions of the Act in the right direction as per letter and spirit of Explanation (a) attached to section 6(1)(c) of the Act – thus, the order of the CIT(A) is upheld – Decided against revenue. - I.T.A.No.1022/Del/2009 - - - Dated:- 30-4-2014 - G.D. AGRAWAL AND CHANDRA MOHAN GARG, JJ. For the Appellant : S.N. Bhatia. For the Respondent : Anoop Sharma. ORDER PER : CHANDRAMOHAN GARG This appeal has been preferred by the revenue against the order of Commissioner of Income Tax(A)-XXVII, New Delhi dated 31.10.2008 in Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2004 and, therefore, assessee does not fall in the category of NRI as per provisions of section 6(1)(c) of the Income Tax Act, 1961 (for short the Act), which clearly stipulates that an individual is said to be resident in India in any previous year if he having within the four years preceding that year been in India for a period or periods amounting in all to 365 days or more, is in India for a period or periods amounting in all to 60 days or more in that year. The Assessing Officer held that Explanation to section 6(1)(c) of the Act is not applicable to the assessee and assessee failed to prove himself as an NRI as per provisions of section 6(1)(c) of the Act. With these observations, the Assessing Officer added back the amount of ₹ 8 lakh on account of income from consultancy and ₹ 7,75,612/- on account of subsistence allowance to the income of the assessee. The aggrieved assessee preferred an appeal before the Commissioner of Income Tax(A) which was allowed by the impugned order. Now, the aggrieved revenue is before this Tribunal with the grounds as mentioned hereinabove. Ground no. 1 to 3 of the revenue 5. We have heard rival arguments of both the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meals and other day-to-day expenses incurred by the assessee during the stay in Bhutan for the purpose of employment, therefore this amount cannot be taxed in India if the assessee holds the status of NRI. The counsel also submitted that had these impugned amounts receipts of Bhutan been the professional income of the assessee, then the assessee would have claimed the expenditure incurred in earning that income. The counsel of the assessee submitted that the Commissioner of Income Tax(A) rightly interpreted the provisions of the Act, agreement dated 31.5.2004 in a proper manner and granted relief for the assessee on sound legal footing. 8. On careful consideration of above rival submissions and perusal of record, at the outset, we find it appropriate to reproduce section 6(1)(c) of the Act with Explanation (a) attached to that section which reads as under: 6. Residence in India. For the purposes of this Act, (1) An individual is said to be resident in India in any previous year, if he (a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more; or (b) 31. * * * (c) having within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting from 1.6.2004. (b) The appellant was to join on or before 1.6.2004. (c) The work for which the appellant was sent to Bhutan was Bhutan Road Rehabilitation project. (d) The appellant was responsible for giving good performance and high quality. (e) After reaching Bhutan he was to report to the Team Leader of the Project. (f) He was to get ₹ 80,000/- per month as fee for services rendered subject to TDS as per Indian Income Tax Act. Further, he was to get a subsistence allowance of 70 US$ per day in Thimpu and 50 US$ outside Thimpu. (g) The appellant was to devote entire time for the project and he was not to engage himself in any other work. (h) The appellant was to provide all information to LBG related to the above project which he gathered during his stay in Bhutan. 6.5 It has been submitted that there are so many bindings as mentioned above put upon the appellant like the joining dated of 1.6.2004, the period of twelve months, reporting to Team Leader, devotion of entire time to project only, getting fixed salary as well as subsistence allowance on daily basis, giving good performance, sharing all informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purposes of employment outside India, and his stay in India in the previous year was only 68 days which is much less than the period of 182 days stipulated thereunder. 6.10 In view of the above discussion, it is hereby held that the Assessing Officer was not justified in treating the appellant as a resident during the previous year and thereby making addition on account of his income received outside India in the course of his employment in Bhutan. The additions of ₹ 8,00,000/- and ₹ 7,75,612/- made on this count are, accordingly, hereby deleted.' 11. In view of above, we are of the considered view that the Assessing Officer misinterpreted the provisions of section 6(1)(c) and Explanation (a) attached thereto. On the other hand, the Commissioner of Income Tax(A) rightly held that the assessee has to be treated as non-resident as per Explanation (a) attached to section 6(1)(c) of the Act. The Commissioner of Income Tax(A) also rightly held that in the case of the individual, a citizen of India who left India during the previous year for the purpose of employment outside India and in a peculiar circumstance, when his stay in India during the relevant pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
