2002 (2) TMI 914

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....Three conditions are laid down by the DTAA for claiming the exemption on account of salary paid to any person, who is not Resident of India. These three conditions are as under :- "(i)The recipient is present in the other State (i.e., India) for a period or periods not exceeding in the aggregate 183 days in the fiscal year concerned; (ii)The remuneration is paid by, or on behalf of, an employer who is not a resident of the other state; and (iii)the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State." 3. The Assessing Officer noted that assessee failed to produce evidence in regard to the stay of the assessee which was less than 183 days. Accordingly the salary/remuner....

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....es for technical services. This condition is also satisfied, as we have already mentioned somewhere above, that Indian company has not claimed any deduction and Italian company has also not claimed any deduction in India, because the Italian company has no PE in India. 6. The ratio of the decision in the case of CIT v. G.T. Fields, reported in 212 ITR (St.) 370 is in favour of assessee. In this case the Special Leave Petition of department was dismissed by holding that the decision of the Tribunal is correct, who allowed exemption under section 10(6)(v) of the Act. Therefore, in view of these facts and circumstances we hold that the salary paid to the assessee was exempt in India. Accordingly we delete the additions sustained by the CIT ....

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....rovision is not available. In the present case, undisputedly the stay of the assessee was only three months and 22 days. Accordingly the exemption under section 10(6)(viia) is allowable to the assessee. The certificate in regard to stay is placed in the paper book at page 1, which clearly shows that the stay was not above four months. We further noted that the assessee was not required even to seek approval because his stay was less than 12 months in a calendar year. We have also noted that the tax has already borne by the employer of the assessee. Therefore also we find that assessee is entitled for the exemption. Accordingly we hold that assessee was not liable to be included the income borne by M/s Indo Gulf Fertilizers & Chemicals Corpo....