Sri Vijendra Govinda Setty , Bangalore V. Income Tax Officer Ward-5(3)(5), Bangalore

MA 106/BANG/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7231 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-09-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 05-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GANESH R GHALE DEPT
• Assessee Lawyers: C SANDEEP
• Keywords: Residential status
• Section: 254(2); 73

Judgement Text

MP NO.106/BANG/2019 SRI VIJENDRA GOVINDA SETTY, BANGALORE IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH SMC: BANGALORE BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER MP NO.106/BANG/2019 (ARISING OUT OF ITA NO.2579/BANG/2018) ASSESSMENT YEAR: 2013-14 SRI VIJENDRA GOVINDA SETTY VAASTU HILL VIEW II # 438, BANGARAPPA NAGAR MAIN ROAD RAJA RAJESHWARI NAGAR BANGALORE 560 098 PAN NO : ARAPS3570J VS. ITO WARD-5(3)(5) BANGALORE APPELLANT RESPONDENT APPELLANT BY : SHRI C. SANDEEP, A.R. RESPONDENT BY : SHRI GANESH R. GHALE, STANDING COUNSEL FOR DEPT. DATE OF HEARING : 03.09.2021 DATE OF PRONOUNCEMENT : 03.09.2021 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON CONTENDING THAT THERE IS MISTAKE APPARENT FROM RECO RD IN THE ORDER DATED 24.5.2019 PASSED IN ITA NO.2579/BANG/2018. 2. THE PETITION FILED BY THE ASSESSEE READS AS UNDE R: APPLICATION U/S 254(2) OF INCOME TAX ACT, 1961 (AC T) THE APPELLANT SEEKS THE LEAVE OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, BANGALORE TO FILE THE FOLLOWING APPLICATI ON U/S. 254(2) OF THE ACT TO RECTIFY THE MISTAKE APPARENT FROM RECORD . MP NO.106/BANG/2019 SRI VIJENDRA GOVINDA SETTY, BANGALORE PAGE 2 OF 4 1. THE APPELLANT IS AN EMPLOYEE OF TATA CONSULTANCY SE RVICES LTD. THE APPELLANT WAS SENT ON OFFICIAL WORK TO USA ON TOUR DEPUTATION. THE APPELLANT WAS EXPECTED TO BE PRESENT IN USA TILL THE PROJECT IS OVER. DURING THE PERIOD HE WAS IN USA, HE WAS PAID A LIVING ALLOWANCE AS HE WAS CONSIDERED TO BE ON TOUR. 2. THE APPELLANT FILED THE RETURN FOR THE AY 2013-14 W HEREIN HE CLAIMED THAT THE LIVING ALLOWANCE OF RS. 23,33,552/- IS NOT TAXA BLE AS INCOME. THE LEARNED ASSESSING OFFICER HELD THAT THE LIVING ALLOWANCE IS INCOME AND SINCE THE APPELLANT IS A RESIDENT, HIS GLOBAL INCOME IS TAXAB LE. HE ACCORDINGLY ADDED RS. 23,33,552/-. THE ASSESSMENT WAS CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). 3. THE APPELLANT FILED ADDITIONAL GROUNDS CONTENDING T HAT THE APPELLANT IS A NON-RESIDENT AS HE LEFT INDIA FOR THE PURPOSES OF E MPLOYMENT OUTSIDE INDIA AND HAS STAYED FOR 77 DAYS ONLY IN INDIA DURING FIN ANCIAL YEAR 2012-13 RELEVANT TO ASSESSMENT YEAR 2013-14. DURING THE PROCEEDINGS BEFORE THE HON'BLE ITAT, THE APPELLANT CONTENDED THAT SUBSECTION (1) OF SECTION 6, WHICH DETERMINES THE RESIDENTIAL STATUS OF AN INDIVIDUAL, REQUIRES HAT EITHER THE APPLICANT SHOUL D HAVE BEEN IN INDIA FOR 182 DAYS [VIDE CLAUSE ( A)] OR FOR 60 DAYS OR MORE, IF HE WAS IN INDIA FOR 365 DAYS OR MORE IN FOUR PRECEDING YEARS [(VIDE CLAUSE (C)]. THE EXPLANATION TO THIS SUB-SECTION PROVIDES THAT A CITIZEN OF INDIA WHO LE AVES INDIA FOR THE PURPOSE OF EMPLOYMENT OUTSIDE INDIA CAN BE CONSIDERED AS RE SIDENT OF INDIA, IF HE HAS BEEN IN INDIA FOR 182 DAYS OR MORE EVEN THOUGH HE M AY HAVE BEEN IN INDIA FOR MORE THAN 365 DAYS IN 4 PRECEDING YEARS. THE NE T EFFECT OF SECTION 6(1) READ WITH THE EXPLANATION IS THAT FOR AN INDIVIDUAL WHO HAS LEFT INDIA FOR EMPLOYMENT OUTSIDE INDIA, HE SHOULD BE TREATED AS R ESIDENT OF INDIA ONLY IF HE WAS IN INDIA DURING THE RELEVANT PERIOD/YEAR FOR 18 2 DAYS OR MORE. IN OTHER WORDS, IF AN INDIVIDUAL HAS SPENT LESS THAN 182 DAY S IN INDIA DURING A PREVIOUS YEAR AND WAS OUTSIDE INDIA FOR THE PURPOSES OF EMPL OYMENT, THEN REGARDLESS OF HIS BEING IN INDIA FOR 365 DAYS OR MORE DURING 4 PRECEDING PREVIOUS YEARS, HE CANNOT BE TREATED AS A RESIDENT OF INDIA. IN SHO RT THE APPELLANT SUBMITTED THAT HIS CASE IS COVERED BY S.6(1)(C ) OF THE ACT. 5. IN THE PRESENT CASE, THE APPELLANT HAD LEFT INDIA F OR THE PURPOSES OF EMPLOYMENT OUTSIDE INDIA AND HAS STAYED FOR 77 DAYS ONLY IN IN DIA DURING FINANCIAL YEAR 2012-13. THEREFORE, STAY OF 365 DAYS OR MORE DURING FOUR PRECEDING YEARS U/S 6(1)(C )IS NOT APPLICABLE AS HELD IN THE FOLLOWING DECISIONS; 5.1. ANURAG CHAUDHARY IN RE (322) ITR 293 (AAR) 5.2. ADVESH KUMAR VS DCIT (172) ITD 73 (DEL) 5.3. PRAMOD KUMAR SAPRA VS ITO (167) ITD 596 (DEL) MP NO.106/BANG/2019 SRI VIJENDRA GOVINDA SETTY, BANGALORE PAGE 3 OF 4 6. THE HON'BLE MEMBER IN PARA 4.7.2 OF PAGE NO. 6 OF T HE ITAT ORDER HAS HELD AS UNDER; THAT THE ASSESSEE STAYED IN INDIA FOR 77 DAYS IN TH E PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2013-14 IS NOT IN DISPUTE. HOWEV ER, THE TWIN CONDITIONS THAT HE SHOULD HAVE BEEN IN INDIA FOR 365 DAYS IN T HE FOUR PRECEDING PREVIOUS YEARS HAS NEITHER BEEN RAISED OR EXAMINED BY THE AU THORITIES BELOW. THE AO, IN THE ORDER OF ASSESSMENT, HAD MADE A CLAIM TOWARD S THAT END AND THE AO'S LETTER DATED 18.01.2019 FILED BY REVENUE REITERATES THE SAME. IT IS HOWEVER SEEN THAT THE AO HIMSELF STATED THAT THE ASSESSEE'S DEPUTATION PERIOD WAS FROM 30.08.2009 TO 14.01.2013. THAT BEING SO, IT IS NOT CLEAR AS TO HOW THE AO DETERMINED THAT THE PERIOD OF STAY OF THE ASSESS EE IN INDIA WAS 365 DAYS IN THE FOUR PREVIOUS YEARS. THIS ISSUE REQUIRES TO BE EXAMINED /VERIFIED FACTUALLY. 7. IN VIEW OF THE SUBMISSIONS MADE IN PARA 4 A ND 5, IT IS MOST RESPECTFULLY SUBMITTED THAT THE FINDING ON THE STAY OF 365 DAYS OF THE APPELLANT IN INDIA IN PRECEDING FOUR YEARS IS NOT RELEVANT. THE HON'BL E MEMBER HAS NOT GIVEN A FINDING ON THE SUBMISSION OF THE APPELLANT THAT H IS CASE IS COVERED BY S.6(1)(A). HENCE, IT IS HUMBLY PRAYED THAT A FINDIN G ON APPLICABILITY OF S.6(1)(A) MAY KINDLY BE GIVEN). 3. IT IS THE SUBMISSION OF THE ASSESSEE THAT THE TR IBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE A.O. TO EXAMI NE THE APPLICABILITY OF SECTION 6(1)(C) OF THE INCOME-TAX ACT,1961 ['THE ACT' FOR SHORT] WHILE THE ASSESSEES CASE IS COVERED BY SECTION 6(1)(A) O F THE ACT. ACCORDINGLY, IT IS SUBMITTED THAT THE ORDER PASSED BY TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM RECORD. 4. I HEARD THE PARTIES AND PERUSED THE RECORD. I N OTICE FROM THE DECISION GIVEN BY TRIBUNAL, WHICH IS HIGHLIGHTED BY THE ASSESSEE IN ITS PETITION, THAT THE TRIBUNAL HAS TAKEN A PARTICU LAR VIEW OF THE MATTER AND RESTORED THE ISSUE TO THE FILE OF THE A. O. FOR EXAMINING IT. IN MY VIEW, THE SAME WOULD NOT CONSTITUTE MISTAKE A PPARENT FROM MP NO.106/BANG/2019 SRI VIJENDRA GOVINDA SETTY, BANGALORE PAGE 4 OF 4 RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. ACCORDINGLY, I DISMISS THE MISCELLANEOUS APPLICATION FILED BY TH E ASSESSEE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD SEPT, 2021 SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 3 RD SEPT, 2021. VG/SPS COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.