TaxTMI 
TaxTMI 
2024 (1) TMI 746
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....ee to stay and work in Mauritius as an investor not an employee.? 2. Whether on the facts and circumstances of the case, the Ld CIT(A) erred in deleting the addition income received in Mauritius in USD 43,75,000 converted into INR 23,79,53,188/- (conversion rate at Rs. 54.3893 per 1 US $) despite the fact that from the seized documents found it was clear that the assessee has not paid any taxes in Mauritius on Fees of USD 43,75,000 for negotiations and obtaining investment from Credit Suisse. Thus, no taxes has been paid on the fees received of USD 43,75,000 in any jurisdiction? 3. Whether on the facts and circumstances of the case, the Ld CIT(A) erred in determining the residential status of the assessee for the year under consideration as Non-Resident despite the fact that assessee has stayed in India for period of 176 days (which is more than 60 days) in current year and within the four years preceding the current year have been in India for periods amounting in all more than 365 days.? 4. The appellant craves to leave, to add, to amend and / or to alter any of the ground of appeal if need be." 3. At the outset, in the larger interest of justice, a slight delay of 13 days....
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....sed under section 153A of the Act did not agree with the submissions of the assessee and held that the assessee left India in the relevant financial year as an "Investor" on a business visa which is usually taken by an investor and not by an employee who leaves India for employment. Accordingly, the A.O. held that the residential status of the assessee for the year under consideration is "Resident" and the assessee is not entitled to take benefit of Explanation-1(a) to section 6(1) of the Act. Since the assessee has stayed in India for a period of 176 days (which is more than 60 days) in the current year and has been in India for a period of more than 365 days within four years preceding the current year, the assessee was held to be a "Resident" as per the provisions of clause (c) of section 6(1) of the Act. Accordingly, income received by the assessee from offshore jurisdiction of Rs. 28,14,64,628 (equivalent to USD 51,75,000) was added to the total income of the assessee. 6. The learned CIT(A), vide impugned order, agreed with the submissions of the assessee and held that the assessee was away from India for the purpose of employment outside India and is accordingly entitled to ....
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....India in any previous year as a member of the crew of an Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958), or for the purposes of employment outside India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted;" 9. Therefore, under section 6(1) of the Act, an individual is said to be resident in India in any previous year, inter-alia, if he has within four years preceding the relevant year been in India for a period of 365 days or more and is in India for a period of 60 days or more in the relevant year. In the present case, there is no dispute that the assessee was in India for a period of 365 days in the four years preceding the relevant year. Explanation-1(a) to section 6(1) of the Act further extends the period of 60 days and substitutes the same to 182 days in case of a citizen of India who has left India for the purpose of employment outside India. Since during the year, the assessee stayed in India only for a period of 176 days, therefore, it becomes necessary to decide whether the assessee ha....
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....2 to December 2012 declaring a total income of MUR 1,65,12,353 and a tax deduction of MUR 24,76,852, against the same. The Revenue however, did not agree with the submissions of the assessee and on the basis of the status as "Investor" in the Occupation Permit issued by the Government of Mauritius as well as the business visa issued to the assessee concluded that the assessee had left India not for the purpose of employment but as an Investor. In this regard, the A.O. has also taken into consideration that the assessee was holding 100% shareholding in Firstland Holdings Ltd., Mauritius, from which the assessee received alleged salary and fees for negotiation and obtained investments for the company. Accordingly, as per the A.O., the assessee has considerable control over affairs of the company i.e., Firstland Holdings Ltd., Mauritius, and the copy of the appointment letter and salary slips provided by the assessee are self-serving documents in view of the fact that the assessee had no permit for employment in Mauritius. 12. We find that the issue of whether the term "employment outside India" includes "doing Business" by the taxpayer, came up for consideration before the Hon'ble K....
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....n (c) above will stand modified to that extent in such cases." 7. What is clear from the above is that no technical meaning is intended for the word "employment" used in the Explanation. In our view, going abroad for the purpose of employment only means that the visit and stay abroad should not be for other purposes such as a tourist, or for medical treatment or for studies or the like. Going abroad for the purpose of employment therefore means going abroad to take up employment or any avocation as referred to in the Circular, which takes in self-employment like business or profession. So much so, in our view, taking up own business by the assessee abroad satisfies the condition of going abroad for the purpose of employment covered by Explanation (a) to section 6(1)(c) of the Act. Therefore, we hold that the Tribunal has rightly held that for the purpose of the Explanation, employment includes self-employment like business or profession taken up by the assessee abroad." We therefore dismiss the appeal filed by the revenue." 13. We further find that similar findings have been rendered by the Co-ordinate Bench of the Tribunal in the following decisions:- i) K. Sambasiva Rao ....