9911796707
TMI Blog2019 (5) TMI 1900X X X X Extracts X X X X X X X X Extracts X X X X ..... s discussed above, it is deemed appropriate to set aside the orders of the authorities below and restore the matter to file of the AO to examine / verify the facts of the matter and decide the residential status of the assessee in the previous relevant to Assessment Year 2013-14 for assessment of the correct income of the assessee in accordance with law. If AO determines the status of the assessee to be Resident in India, he shall examine the taxability of the income received by the assessee in USA, in the light of the aforesaid decision of the ITAT Kolkata such in ITO Vs. Saptarishi Ghosh [ 2011 (9) TMI 397 - ITAT, KOLKATA] cited by the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee himself, during assessment proceedings, had asked the AO to consider the global income and grant credit for taxes paid in the USA and therefore there is no infirmity in the order of the AO. It is seen that the CIT(A) neither adjudicated / addressed the issue of whether the deputation income received by the assessee while on deputation in USA is in the nature of living allowance exempt under section 10(14) of the Act nor did the CIT(A) consider the judicial decision of ITAT, Kolkata Bench cited by the assessee (supra). 4.1 Aggrieved by the order of CIT(A)-5, Bangalore, dated 24.11.2017 for Assessment Year 2013-14, the assessee has preferred this appeal before the Tribunal, wherein he has raised the following grounds: 1. That the order of the learned Commissioner of Income Tax (Appeals) is prejudicial to the interests of the appellant, is bad and erroneous in law and against the facts and circumstances of the case. 2. That the learned Commissioner of Income Tax (Appeals) erred in law and on facts in holding, that the living allowance received by the appellant in USA while on official tour is income liable to tax. 3. Without prejudice to the generality of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.4.1 In support of grounds raised in this appeal (supra), the assessee has filed a Paper Book (pages 1 to 67) containing various documents, copies of certain judicial pronouncements; including the decision in the case of ITO Vs. Saptarishi Ghosh (supra). The assessee has also raised additional grounds (supra) canvassing the argument that since the assessee has stayed in India for only 77 days in the relevant previous year, therefore he should have been treated as a Non-Resident and assessed as such. It was submitted that since the assessee is a Non-Resident, the income received in USA was not liable to be assessed in India at all. To buttress his contentions in the additional grounds, the assessee has filed a copy of the Deputation Agreement entered into by him with his employer as additional evidence (copy placed at pages 11 to 25 of Paper Book). 4.4.2 The issue that the assessee is a non-resident for tax purposes due to his stay in India for only 77 days has not been raised either before the AO on the CIT(A). However, the taxability of the income depends critically on the residential status of the assessee. Therefore, it is deemed appropriate to admit the additional grounds rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, when carrying the matter in appeal before the CIT(A), he raised the ground Nos.2 and 3 contending that the income received by the assessee for official work while on deputation in USA is living allowance which is exempt under section 10(14) of the Act; a claim not raised before the AO in assessment proceedings. In the present appeal, the contentions in the ground raised by the assessee (supra) are that he should be assessed as a non-resident; thereby challenging the very characterization of his residential status. 4.7.2 Be that as it may, it is the duty of the AO to assess the correct income of the assessee and for that purpose it is essential and necessary to determine the correct status of the assessee. That the assessee stayed in India for 77 days in the previous year relevant to Assessment Year 2013-14 is not in dispute. However, the twin conditions that he should have been in India for 365 days in the four preceding previous years has neither been raised or examined by the authorities below. The AO, in the order of assessment, had made a claim towards that end and the AO's letter dated 18.01.2019 filed by Revenue reiterates the same. It is however seen that the AO himself ..... X X X X Extracts X X X X X X X X Extracts X X X X
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