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2014 (12) TMI 519 - ITAT DELHIResidential Status of assessee - Salary and Subsistence Allowance received in Bhutan – Form No.16A not appreciated as TDS was deducted – Misinterpretation of section 6(1)(c) - Whether the assessee is a Non Resident Indian against Resident by wrongly applying the provision of section 6(1)(c) or not – Held that:- The AO has made the addition by holding that the assessee does not fall in the category of NRI as per the provisions of section 6(1)(c) of the Act - the assessee had left India on 8.06.2004 for taking up employment in Bhutan with Louis Berger Group Inc (LGB) and remained there continuously for almost ten months till the end of the previous year 2004-05 - the assessee stayed in India only for a period of 68 days during the previous year - the AO misinterpreted the provisions of section 6(1)(c) and Explanation (a) attached thereto – CIT(A) rightly held that the assessee has to be treated as non-resident as per Explanation (a) attached to section 6(1)(c) of the Act - in the case of the individual, a citizen of India who left India during the previous year for the purpose of employment outside India and in a peculiar circumstance, when his stay in India during the relevant period was only 68 days which is much less than the period of 182 days as per statutory provisions of the Act, then the assessee cannot be treated as resident of India and his status would be of non-resident Indian for the purpose of levying of tax as per provisions of the Act. The AO wrongly denied relief for the assessee and made additions on the basis of misinterpretation of facts – CIT(A) granted relief for the assessee by considering agreement of employment dated 31.5.2004, other relevant documents and by properly interpreting the provisions of the Act in the right direction as per letter and spirit of Explanation (a) attached to section 6(1)(c) of the Act – thus, the order of the CIT(A) is upheld – Decided against revenue.
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