TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 364
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....nd in law, the Ld.CIT(A) erred in granting exemption u/s. 10(10CC) in respect of tax on tax perquisite provided by Siemens AG - Rs. 38,04,684/-. 3. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in allowing the expenses of Rs. 2,38,709/- paid to broker in US for managing the portfolio. 3a. While doing so the CIT(A)'s failed to appreciate that the expenditure cannot be said to be wholly and exclusively laid down for the purpose of earning dividend which was incurred due to investment activity. 3b. Further the CIT(A)'s failed to appreciate that the assessee had already got the benefit by way of indexation while determining the long term capital gain. 4. The appellant prays that the order of CIT(A) on the above grounds be set aside and that of the AO restored. The appellant craves leave to amend or alter any ground or add a new ground that may be necessary. 2. The assessee raised the following Grounds in his cross objection: The respondent objects to the order dated 30 April 2010 passed by the learned Commissioner of Income-tax (Appeals)-13, Mumbai for the assessment year 2005-06, on the following among the other grounds: Long-te....
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....tiny. During the course of assessment proceeding, the Assessing Officer (AO) asked the assessee to furnish details of stay in India to substantiate his status. The assessee contended in his reply that he was a non-resident and his claim of ordinary resident was wrong. After examining the detail of stay from the copies of Passport, the AO concluded that assessee is "resident and ordinary resident". The assessee later on during assessment proceedings also claimed that he is resident in USA and consequently is non-resident in India. As per Indo-US Tax Treaty by applying the provision of section 90 of Income-tax Act and claimed that he be treated as non-resident under the I.T. Act irrespective of his stay in India. This claim of assessee was also not accepted by AO. And AO framed the assessment order wherein a sum of Rs. 13,03,704/- was assessed as "income from other sources" Rs. 1,18,798 as an income under the head "Capital Gain" and Rs. 38,04,684/- as income from 'salary' and denied the benefit of tax paid in foreign country. 4. Aggrieved by the order of AO, the assessee filed appeal before the CIT(A). In appeal the assessee was allowed exemption u/s 10(10CC) and also deleted the ad....
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....e, provided, however, that: (a) This term does not include any person who is liable to tax in that state in respect only of income from source of that state; and (b) In the case of any income derived or paid by a partnership, a State, or trust, this term applies only to the extent that the income derived by such partnership, a State or trust is subject to tax in that state as income of a resident, either in its hand or in the hands of its partner or beneficiaries, 2. Where by reason of the provisions of paragraph 1, and individual is a resident of both contracting state, then the status shall be determined as follows: (a) He shall be deemed to be a resident of the state in which he has a permanent home available to him; if he has a permanent home available to him in both the States; he shall be deemed to be a resident of the state with which his personal and economic relations are closer. (b) If the state in which he has his centre of vital interests cannot be determined or if he does not have a permanent home available in either state, he shall be deemed to be resident of the state in which he has a habitual abode; (c) If he has an habitual abode in both the States or ....
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....see correctly claimed exemption of Rs. 38,04,684/- in the return of income. We have considered the rival contention of the parties and perused the material available on record. The AO while framing the assessment observed that the assessee has included the perquisite received from his employer in his total income while filing the return of income. However, during the assessment proceeding, the assessee claimed that in view of the Delhi Tribunal decision in RBF Rig Corporation LLC 297ITR(AT) 228 Delhi , the amount of Rs. 3804684/- should not be included in the assessee's salary income. The contention of assessee was not accepted by AO. AO concluded that assessee had an option to file a revised return and rejected the claim of assessee for exclusion of Rs. 38,04,684/- from the head "Income from Salary". Before the CIT(A) while arguing this ground, it was argued that assessee made a claim of deduction in the course of assessment proceeding in the light of special bench decision in ITAT, Delhi in RBF Rig Corporation LLC (297 ITR (AT to 228 Del.) Assessee could not file revised return within the time prescribed. The CIT(A) while considering the ratio and the case of special bench in cas....