TMI Blog1998 (7) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ia from Siemens, Germany. For getting the services of foreign technicians, a reference was made by BHEL to the Government of India, Ministry of Industries, vide letter dated May 25, 1989. The Ministry of Industries, Government of India, informed the Bharat Heavy Electricals Limited about the approval of the Government for engaging the services of the petitioner, an employee of the aforesaid Siemens Company at Germany, for a period, of 1.5 years in India on terms of payment of daily allowance of Rs. 500 per day in India. On the basis of the said approval, the petitioner came to India for rendering services to BHEL on deputation. The petitioner during the assessment years 1990-91 and 1991-92, received a sum of Rs. 1,11,264 only as daily allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,240 towards tax on behalf of the petitioner. The petitioner prayed that the assessment orders passed on November 27, 1992, for the assessment years 1990-91 and 1991-92 and the order passed by the Commissioner of Income-tax on February 18, 1994, for the said assessment years be set aside and cancelled. It has further been prayed that the amount of tax deposited for the assessment years 1990-91 and 1991-92 be refunded. I have heard learned counsel for the parties. It appears that without appreciating the provisions contained in the proviso to section 5(1)(c) read with sub-sections (1) and (6) of section 6 of the Act, the Commissioner held that the petitioner's salary received in Germany was taxable. Admittedly, the petitioner had stayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to one hundred and eighty-two days or more ; or... (6) A person is said to be 'not ordinarily resident' in India in any previous year if such person is-- (a) an individual who has not been resident in India in nine out of the ten previous years preceding that year, or has not during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and thirty days or more; or..." Considering the aforesaid provisions of law, I find that a person is "not ordinarily resident" in India if in nine out of the ten preceding years he had stayed outside India. Admittedly, it is nobody's case that the petitioner had stayed in India during the preceding nine years. In that view of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance granted to the assessee either to meet his personal expenses at the place where the duties of his office or employment of profit are ordinarily performed by him or at the place where he ordinarily resides, or to compensate him for the increased cost of living, as may be prescribed and to the extent as may be prescribed : Provided that nothing in sub-clause (ii) shall apply to any allowance in the nature of personal allowance granted to the assessee to remunerate or compensate him for performing duties of a special nature relating to his office or employment unless such allowance is related to the place of his posting or residence." According to the petitioner pursuant to the said provisions of the Act a notification was also issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very much available in the grounds of revision filed under section 264 of the Act, by the petitioner before him. On the basis of the above discussions, I hereby quash and set aside the assessment orders dated November 27, 1992, passed by the Assistant Commissioner of Income-tax, Circle-I, Saharanpur, and the order dated February 18, 1994, passed by the Commissioner of Income-tax, Meerut. I further direct the respondents to refund the sum of Rs. 2,51,240 paid under mistaken belief by Bharat Heavy Electricals Limited, within a period of two months from the date of production of a certified copy of this order. If the amount is not refunded within the said period, interest at the rate of 24 per cent. per annum shall be paid by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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