9911796707
TMI Blog1996 (10) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The applicant arrived in India on November 16, 1995, in connection with his employment with the U. K. company. The applicant has presented this application under section 245Q(1) of the Income-tax Act, 1961, seeking the ruling of this authority on the following questions : "1. Whether the applicant will qualify as a 'technician' in accordance with section 10(5B) of the Act ; and accordingly. 2. Whether, the taxes paid by the employer of the applicant would be exempt from taxation under section 10(5B) of the Act, for a period of fortyeight months commencing from the date of arrival in India ?" The applicant's total stay in India during the financial year 1994-95 is nil. He is, therefore, a "non-resident" in India during the financial ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sman, project scheduled engineer, head computer operations, construction planner, cost engineer, chief construction planner, application engineer, senior construction planner, etc. The answer to the applicant's questions primarily depends upon the issue whether he can be said to be a "technician" within the meaning of section 10(5B) of the Act. This provision, which was inserted in the Act by the Finance Act of 1993 with effect from April 1, 1994, replaces section 10(6)(vii) which was in force between April 1, 1964, and March 31, 1971, and section 10(6)(viia), which was in force between April 1, 1971 and March 31, 1994. It is, however, not necessary to set out the earlier provisions which vary in some respects from clause (5B) with which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations, or in mining or in the generation of electricity or any other form of power, or . . . who is employed in India in a capacity in which such specialised knowledge and experience are actually utilised ;" Leaving out the irrelevant portions of the exemption clause, the first point for consideration before the authority is whether the applicant can be stated to be "a person having specialised knowledge and experience in constructional or manufacturing operations." This also involves a consideration of the nature of the operations which the applicant carried out during the period of his assignment in India so as to judge whether his specialised knowledge and experience are actually utilised in his employment in India. The words "knowl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of income under section 64 of the Act. The court held that possession of any qualification issued by a recognised body is not necessary for "knowledge and experience". A similar view has been held by the Kerala High Court in CIT v. Sorajbi Dorabji [1987] 168 ITR 598, the Bombay High Court in Dr. J. M. Mokashi v. CIT [1994] 207 ITR 252 and the Madhya Pradesh High Court in CIT v. Madhubala Shrenik Kumar [1990] 181 ITR 180. The applicant admittedly did not receive any technical education from any recognised body but as discussed above, it cannot be treated as a disqualification for treating him as a "technician". From the statement of facts it is seen that he has over 35 years experience in construction, planning and cost engineering of pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nager and construction management. F. Review weekly progress and investigate shortage of material. G. Assist in preparation of field progress reports. H. Supervise sub-contractors' schedules, check for conformity with overall construction programme objectives and analyse feasibility. I. Review manpower and productivity statistics. J. Supervise sub-contractors' weekly work lists for critical activities. K. Assist with logic modifications and criticality report generations. L. Review detailed turnover schedule, produced by the contractors and assist in the preparation of the construction close-out report. As construction planner/scheduler, the applicant is required to possess expert level of practical knowledge and an in-depth underst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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