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2021 (2) TMI 908 - HC - Income TaxStatus of assessee - period of stay in India - Not Ordinarily Resident in India - adjustments u/s. 143(1) - error in Form-16 - stock options income accrued and received outside India - perquisites taxable under the Income-tax Act - Whether the gain on sale of stock options in USA that were given to the Indian employee by M/s.Google Inc., USA amounts to perquisites taxable under the Income-tax Act, 1961 or not? - Whether the gain on sale of stock options in USA that were given to the Indian employee by M/s.Google Inc., USA amounts to perquisites taxable under the Income-tax Act, 1961 - Whether the amounts shown in Form-16 as Tax Deducted at Source on such perquisites would be the exclusive gain made by the Assessee on such stock options issued by the Holding Company in USA is sufficient to hold that it is taxable under the head 'salary' as 'perquisites' with reference to the provisions under section 5(1) (c) and 6(6) (a) read with Section 17? - tax imposed by the Revenue under section 143(1) of the Act after issuance of Notice under section 143(2) HELD THAT:- On a reading of the order of the Tribunal reveals that on the basis of the written submission made by the assessee as well as particulars found in Form-16 issued by his employer, the authorities negatived the claim of the appellant. Assessee has to be a "non-resident". The word "non-resident" is defined in Section 115C(e) of the Act. It means an individual, being a citizen of India or a person of Indian Origin who is not a "resident". As per the worksheet submitted by the assessee, he was residing in India from 1-4-2002 to 31-3-2009 (i.e.) 7 years. But preceding to the assessment year 2010-11, he had stayed in India only for 401 days. Thus, the learned counsel for the appellant argued that while purchasing the stock option in the year 2005, the assessee was a resident of the USA and out of the income realized in the USA, he purchased those stock options and hence, it will not come under the income earned in India. Appellant replied that the assessee sent particulars of his stay at the USA preceding to the assessment year with a copy of passport to prove his residential status, but without appreciating those documents, the Commissioner erroneously concluded that the stock option purchased by the assessee comes under the income earned in India. Senior Standing Counsel for Revenue fairly submitted that the assessee may be given one more opportunity to establish his claim before the Assessing Officer. Since the NOR status and the purchase of stock option of the assessee is a mixed question of fact and law, as rightly suggested by the learned Senior Standing Counsel for the department, in the interest of justice, in order to give one more opportunity to the assessee we are of the considered view that the matter can be remitted back to the Assessing Officer. Accordingly, the order passed by the Tribunal is set aside and the matter is remitted back to the Assessing Officer for deciding the matter afresh on merits and in accordance with law. The assessee is given liberty to produce all the relevant documents before Assessing Officer for establishing his claim.
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