Maheswar Tudu, V. ITO, Baripada

ITA 112/CTK/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7835 (ITAT-CUTTACK)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 09-02-2012
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: D K SETH
• Keywords: Salary income
• Section: 6; 10

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM , AND SHRI K.S.S.PRASAD RAO, JM ITA NO. 112/CTK/2012 (ASSESSMENT YEAR 2006 - 07) MAHESWAR TUDU, AT: DUMURDIHA,P.O.NUAGAON,VIA: BISOI,DIST.MAYURBHANJ PAN: ABZPT 1074 D VERSUS INCOME - TAX OFFICER, WARD 2,BARIPADA. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI D.K.SETH, AR FOR THE RESPONDENT SHRI S.C.MOHANTY, DR DATE OF HEARING : 23.05.2012 DATE OF PRONOUNCEMENT : 29.06.2012 ORDER SHRI K.K.GUPTA, AM : TH E ASSESSEE IN APPEAL AGAINST THE ORDER DT.28.11.2011 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE ASSESSMENT YEAR 2006 - 07. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVES INCOME FROM SALARY AS AN EMPLOYEE OF HERALLD MARITI ME SERVICES PVT. LTD, NOR I MAN POINT , MUMBAI 400 002. THE ASSESSEE HAD SERVICE ON BOARD OF VESSELS OUTSIDE INDIA FOR A PERIOD OF 212 DAYS DURING THE ASSESSMENT YEAR UNDER CONSIDERATION AND ACCORDINGLY CLAIMED EXEMPTION OF 5,79,209 U/S.10(6)(VI) IN THE RETURN WHICH WAS PROCESSED U/S. 143 (1). THE ASSESSING OFFICER WAS OF THE VIEW THAT EXEMPTION U/S.10(6) IS ADMISSIBLE TO AN INDIVIDUAL WHO IS NOT A CITIZEN OF INDIA. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE IS A CITIZE N OF INDIA AND DOES NOT FULFILL THE CONDITION AS STIPULATED UNDER THE ABOVE SECTION. HIS STAY IN INDIA DURING THE ASSESSMENT YEAR UNDER CONSIDERATION EXCEEDS 90 DAYS. THEREFORE, IN THE IMPUGNED ASSESSMENT PASSED U/S.143(3)/147 THE ASSESSING OFFICER DISALLO WED THE CLAIM OF EXEMPTION OF 5,79,209 AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE SAID ACTION OF THE ASSESSING OFFICER HAVING BEEN CONFIRMED BY THE LEARNED ITA NO.112/CTK/2012 2 CIT(A) IN APPEAL, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 3. HAVING HEARD BOTH THE PARTIES AND PE RUSING THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL, WE FIND THAT UNDISPUTEDLY THE ASSESSING AUTHORITIES HAVE DISALLOWED THE CLAIM OF EXEMPTION IN RESPECT OF SALARY RECEIVED FOR RENDERING SERVICE ON A VESSEL BELONGING TO HERALD MARITIME SERVICES, OUTSIDE I NDIA FOR THE PERIOD OF 212 DAYS DURING THE ASSESSMENT YEAR UNDER CONSIDERATION BEING HIS STAY IN FOREIGN WATERS, HOLDING A VIEW THAT THAT SUCH EXEMPTION IS AVAILABLE TO A PERSON WHO IS NOT A CITIZEN OF INDIA. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT T HE ASSESSEE WAS OUT OF INDIA, BEING 212 DAYS IN VESSEL ON SERVICE AND REMUNERATION RECEIVED DURING THE YEAR WAS FOR SERVICE RENDERED ON BOAR D OF INDIA COMPANYS VESSEL OUTSIDE INDIA, THE ASSESSEE WAS NOT IN INDIA FOR A PERIOD EXCEEDING 182 DAYS DURING THE YEAR. THE ASSESSEE BEING A CITIZEN LEAVES INDIA AS A MEMBER OF THE CREW OF AN INDIAN SHIP FOR THE PURPOSE OF EMPLOYMENT OUTSIDE OF INDIA AND HE WAS NOT INDIA FOR A PERIOD AMOUNTING TO 182 DAYS OR MORE. THE FORUMS BELOW AS WELL AS THE ASSESSEE HAVE ERRED IN FACT AND LAW INVOKING THE PROVISION OF SUBSECTION 6 OF SECTIO N 10 OF I.T ACT. SUCH PROVISION HAS NO APPLICABILITY TO THE INSTANT CASE AS PROVISION IS RELATABLE TO AN INDIVIDUAL WHO IS NOT CITIZEN OF INDIA AND REMUNERATION IS FOR SERVICE RENDERED IN CONNEC TION WITH EMPLOYMENT ON A FOREIGN SHIP. THE DEDUCTION OF TAX BY THE OWNER OF THE SHIP, (AS EVIDENT FORM NO - 16) FROM THE REMUNERATION / SALARY AGAINST THE SERVICE IN FOREIGN WATER, CANNOT CREATE A LIABILITY ON THIS ASSESSEE - APPELLANT TO PAY INCOME TAX ON H IS EARNED AMOUNT IN THE ASSESSMENT YEAR UNDER CONSIDERATION. THEREFORE, THE MATTER WAS CONSIDERED UNDER THE PROVISIONS OF SECTION 10(6) ERRONEOUSLY BY THE ASSESSING OFFICER KNOWING FULLY WELL THAT THE ASSESSEE IS A CITIZEN OF INDIA AND THE PROVISIONS OF SE CTION 10(6) ARE NOT ITA NO.112/CTK/2012 3 APPLICABLE INSOFAR AS HIS RESIDENT WAS TO BE CONSIDERED UNDER THE PROVISIONS OF SECTION6 FOR TAXATION OF THE INCOME EARNED BY THE ASSESSEE WHEN HE REMAINED ABROAD AS PER THE CERTIFICATE OF THE EMPLOYER. SECTION 6 CLEARLY INDICATES THE T AXABILITY OF SUCH INCOME WHICH THE ASSESSING OFFICER IS REQUIRED TO ASSESS. THEREFORE, IN THE INTEREST OF JUSTICE WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO CONSIDERATION AFRESH IN T HE LIGHT WHAT HAS BEEN STATED ABOVE AND PASS THE ASSESSMENT ORDER DE NOVO AFTER AFFORDING DUE OPPORTUNITY TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. S D / - S D/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 29.06.2012 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: MAHESWAR TUDU, AT:DUMURDIHA,P.O.NUAGAON,VIA: BISOI,DIST.MAYURBHANJ 2. THE RESPON DENT: INCOME - TAX OFFICER, WARD 2,BARIPADA. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY. ITA NO.112/CTK/2012 4 APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 18.06.2012 .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19.06.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P .S 29.06.2012 . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..