AI Drafter 
TaxTMI 
TaxTMI 
2024 (8) TMI 355
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....eal was not intentional rather on account of absence of the appellant from India, delay as caused. We have perused the condonation petition and find that the sole ground taken by the appellant is that he was not present in India at the time of the issuance of the impugned order and it is a fact that appellant was an employee of IBM India Pvt. Ltd. In a catena of decisions, Hon'ble Supreme Court has held that in every case there is a delay, can be some laps on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. In the present case we find that explanation submitted by the appellant do not reflect any mala fide intention of the appellant. Hence, keeping in view the decision of the Hon'ble Apex Court that the case should be decided on merit and not on technical basis. Accordingly, the delay is hereby condoned and the appeal is admitted for adjudication. 2. The brief facts of the case of the appellant are that the appellant Mr. Santanu Sanyal filed his return of income online for the AY 2016-17 declaring taxable income at Rs. 2,55,640/- after claiming a deduction of INR 2,19,372/- under Chapter VI-A of the Act.....
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.... Agreement and adding salary received in India of Rs. 57,93,857/- towards services rendered outside India to taxable income under the Act. 4. That the Impugned Order of Ld. CIT(A) upholding inclusion of foreign assignment allowance amounting to Rs. 48,39,078/-received towards services rendered outside India by nonresident individual, in taxable income under the Act is contrary to provisions of law 5. That the Impugned Order erred in misinterpreting provisions of law to conclude the employment contract is in India and in ignoring that services are undisputedly rendered outside India and hence not taxable under the Act. 6. That Ld. CIT(A) erred in upholding unjust and arbitrary assessment under Section 144 on irrelevant considerations. 7. That Ld. CIT(A) erred in not deleting arbitrary determination of income by Ld. AO purportedly under Section 144, failing to appreciate that even best judgement cannot be arbitrary or capricious. 8. That the Ld. AO erred on facts and in law in disallowing exemption under Section 10(38) on long terms capital gains of Rs. 2,30,238/- from of sale of equity share and equity-oriented fund, while giving effect t....
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....me Tax (International Taxation) ITA No. 24/Kol/2023 g) Bodhisattva Chattopadhyay vs Commissioner of Income Tax, Kolkata [2019] 111 taxmann.com 374 (Kolkata - Tribunal) h) Tadimarri Prasanth Reddy vs Income Tax Officer (International Taxation) [2023] 153 taxmann.com 281 (Hyderabad -Tribunal) i) Durga Prasad Sana vs Income Tax Officer (International Taxation) [20231 154 taxmann.com 532 (Hyderabad -Tribunal) j) Ajay Kumar Singh Gaur vs Income Tax Officer - 2(2), Agra [2021] 127 taxmann.com 630 (Agra- Tribunal) k) Arvind Singh Chauhan vs Income Tax Officer, Ward 1(2), Gwalior [2014] 42 taxmann.com 285 (Agra - Tribunal) l) Sreenivasa Reddy Cheemalamarri vs Income Tax Officer, International Taxation - 1, Hyderabad ITANo. 1463/Hyd./2018 m) Serco BPO v Authority of Advance Rulings, New Delhi [2015] 379 ITR 256 (Punjab and Haryana) n) Skaps Industries India (P.) Ltd v Income Tax Officer, International Taxation, Ahmedabad [2018] 171 ITD 723 (Ahmedabad) 2.3. Ld. Counsel for the assessee further challenges with respect to the disallowance of deduction claimed under Chapter VI-A of India-UK DTAA amounting to INR 2,19,372....
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.... "Having examined the matter, the AO is accordingly directed to verify the veracity of these claims from his records and make necessary adjustments in computation of the total income of the appellant. The appellant may be provided with an opportunity to produce evidences if required. The ground is statistically allowed subject to the above verification." 4.2. So far, the interest and penalty are concerned it has been observed that since the ground is consequential in nature and disposed with the direction to the AO that interest u/s 234A, 234B, 234D of the Act are consequential and mandatory and therefore, the correct computation of interest may be calculated as per law at the time of giving effect to this order. So, before us we have to decide only ground nos. 2-5 as these were dismissed by the ld. CIT(A). The grounds are regarding the assessing of income of the appellant amounting to INR 1,15,28,610/- and adding the foreign allowances to the total income of the appellant which was received outside India for services rendered in United Kingdom amounting to INR 48,39,078/-. Adding the value of stock amounting to INR 1,59,053/- and further disallowing the exempti....
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.... as evident from his stay in India during the relevant PY. A non-resident would be taxable in India only in respect of income received/deemed to be received in India or the income accrued / deemed to accrue in India. In the present case the Appellant being a Non-Resident, has received the foreign allowances of INR 48,39,078 in United Kingdom for services rendered in United Kingdom. Hence we are in this view that the foreign allowance of INR 48,39,078 does not fall within the scope of total income under section 5(2) of the Act. We further find that the foreign assignment allowance was paid by IBM India to the International Travel Card outside India. The said card is denominated in foreign currency only and can be used only outside India. Once an employee is sent on foreign assignment, a travel currency card is issued to the employee by Axis Bank Limited. In this regard, appellant has submitted before us the detailed mechanism of credit to Travel which is as follows- When an employee of IBM is sent on international assignment, Axis Bank upon instruction from IBM issues an Axis travel currency card to an employee who is sent to a foreign assignment. IBM maintains an Exchange ....
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....eration it would emerge that assessee was working outside India for a period of 225 days and the income in question earned by assessee has not accrued in India and is not deemed to have accrued in India. As such the contention of the revenue cannot be accepted." 4.5. In the case of Ranjit Kumar Bose vs. ITO (1986) 18 ITD 230 (Cal.) Hon'ble ITAT, Kolkata Bench has held that "Salary chargeable to tax on the basis irrespective of the fact whether it is received in India and therefore, for a non-resident where services are rendered outside India the same is approved outside India and hence, not taxable in India irrespective of the place of the resident." 5. Going over the documents as well as the submissions of the assessee, we are of this opinion that addition of INR 48,39,078/- the taxable income of the appellant as made by the AO confirmed by the ld. CIT(A) is unjustified and accordingly, the same is deleted. So far as the other grounds are concerned, it appears to us that appellant had received stock option prerequisites amounting to INR 1,76,123/- during the previous AY 2015-16, further an amount of INR 1,59,053/- represents the value of stock option prerequisites accrue....