TaxTMI 
TaxTMI 
2017 (11) TMI 567
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder to make afresh assessment after examining the issue of claim of deduction of salary earned by the assessee on his employment on deputation to foreign country. 3. The brief facts as culled out from the records before us are that, the assessee is an individual who is employed with M/s Reliance Industries Ltd., Mumbai. The assessee was deputed to Iraq, w.e.f. 16/4/2010 and during his stay in Iraq on deputation, he has earned salary income of Rs. 43,68,905/-, out of which salary amount of Rs. 40,04,830/- has been claimed as exempt on the ground that assessee's stay in Iraq was for more than 182 days. The return of income in India was filed at an income of Rs. 98,520/- after claiming exemption of aforesaid amount of salary income. Such a r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e any proper enquiry, therefore, such an order is not only erroneous but also prejudicial to the interest of the Revenue. He, after considering the entire submissions made by the assessee, held that provisions of section 5 clearly provides that income received by the assessee in India has to be taxed in India and it is not the case that the assessee has claimed that he has paid taxes in foreign country and, therefore, credit of tax should be given to him. Accordingly, the order has been set aside to make afresh to examine the issue of deduction. 5. Before us, the ld. counsel for the assessee, submitted that the Assessing Officer in the course of the rectification proceedings u/s 154 initiated after assessment proceedings has specifically r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iscussing either applicability of section 5(2) or section 6. In support of her various contentions as to what is meant by expression "erroneous and prejudicial to the interest of the Revenue" as enshrined in section 263, she has referred and relied upon catena of decisions, for which she has filed a separate synopsis. Thus, her entire focus of argument has been that the Assessing Officer has not made any adequate or proper enquiry to examine such a huge claim of deduction of salary amount and, therefore, in terms of Explanation 2 inserted in section 263 by Finance Act 2015 which clearly postulates that inadequate enquiry by the Assessing Officer will render the assessment order deemed to be erroneous and prejudicial to the interest of the R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....id return though has been filed in the status of "nonresident", however, from the perusal of the assessment order, it is seen that the Assessing Officer has framed the assessment in the status of "resident". Be it that as may be, from the material facts which have been placed before the Ld. Pr. CIT and also before the Assessing Officer during rectification proceedings u/s 154, post assessment proceedings, it is seen that the assessee has given entire details of number of days for which assessee had stayed outside India which has been computed at 203 days. Even if we accept the contention of the ld. CIT D.R. and also finding of the Ld. Pr. CIT that this issue has not been examined in detail or no proper enquiry has been conducted, then at th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bit of taxability of an individual who can be reckoned as resident in India. Sub-section (1) of section 6 clearly provides that an individual is said to be resident in India in any previous year for the purpose of this Act if he is an India in that year for a period of or periods amounting in all to one hundred and eighty-two days or more; or having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty-five days or more, is in India for a period or periods amounting in all to sixty days or more in that year. So far as the second criterion of four years as given in clause (c) of sub-section (1) of section 6, the same is not applicable here. For the purpose of present case,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fact cannot be a determinative of the taxability of resident or non-resident in terms of provisions of the Act. What is relevant is, whether the income can be said to be received or deemed to be received in India. Sub-section (2) of section 5 merely provides that total income of any previous year of a non-resident includes all income from whatever source which is received or deemed to be received in India in such year or accrues or arises or is deemed to accrue or arise to him in India during such year. This sub-section only provides that if the income of the non-resident has been received or accrued in India or deemed to be received or accrued in India, the same shall be treated as total income of that person of that previous year. The sai....