2021 (9) TMI 242 - AT - Income Tax

Tribunal dismisses tax appeal over living allowance taxability, ruling against appellant's non-resident status claim.

Sri Vijendra Govinda Setty Vaastu Hill View II Versus ITO Ward-5 (3) (5) Bangalore

The Tribunal dismissed the miscellaneous application filed by the assessee, ruling that its decision did not constitute a mistake apparent from the record ... Rectification u/s 254 - Tribunal has restored the issue to the file of the A.O. to examine the applicability of section 6(1)(c) while the assessee’s case is covered by section 6(1)(a) - HELD THAT:- Tribunal has taken a particular view of the matter and restored the issue to the file of the A.O. for examining it. In my view, the same would not constitute mistake apparent from record within the meaning of section 254(2) of the Act. Accordingly, I dismiss the miscellaneous application filed by the assessee. Issues:1. Mistake apparent from record in the order dated 24.5.2019 passed in ITA No.2579/Bang/2018.Analysis:The assessee filed a miscellaneous application contending that there was a mistake apparent from the record in the order dated 24.5.2019 passed in ITA No.2579/Bang/2018. The appellant, an employee of Tata Consultancy Services Ltd., was sent to the USA on official work and received a living allowance during his stay, which he claimed as non-taxable income in the return for AY 2013-14. However, the assessing officer held it as taxable income, considering the appellant a resident and added the amount to his income. The appellant argued that he should be considered a Non-resident as he left India for employment outside India and stayed only 77 days in India during the relevant period. The appellant relied on the provisions of section 6(1) of the Income Tax Act, emphasizing that he should be treated as a resident of India only if he was in India for 182 days or more during the relevant period. The appellant cited relevant case laws to support his argument.The Tribunal noted that the appellant's case was covered by section 6(1)(a) of the Act, but the issue was restored to the AO to examine the applicability of section 6(1)(c). The assessee contended that this decision constituted a mistake apparent from the record. However, the Tribunal, after hearing the parties and examining the record, concluded that its decision did not amount to a mistake apparent from the record under section 254(2) of the Act. Therefore, the miscellaneous application filed by the assessee was dismissed, and the order pronounced on 3rd Sept, 2021.In summary, the judgment revolved around the assessee's claim of a mistake apparent from the record in the order passed by the Tribunal regarding the taxability of a living allowance received during a stay in the USA. The appellant argued for non-resident status based on the provisions of section 6(1) of the Income Tax Act, supported by relevant case laws. The Tribunal's decision to examine section 6(1)(c) instead of 6(1)(a) was challenged by the assessee, but the Tribunal found no mistake in its decision, leading to the dismissal of the miscellaneous application.