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2017 (1) TMI 810 - AT - Income TaxTreatment to salary earned for services rendered in Indonesia as income taxable in India - salary income which is deemed to accrue or arise in India - NRI status is not available - appellant worked at Indonesia (Out of India) for more than 182 days in a given financial year - India Indonesia DTAA - bifurcation of income received in India and outside India - Held that:- The assessee has submitted a letter before Assessing Officer offering to withdraw the claim of exemption but the Assessing Officer has not at all considered the said letter offering withdrawal of the claim. He has decided the issue purely on merit by considering the provisions of the direct tax avoidance agreement between India and Indonesia and the rulings from authority of advance ruling. Upon assessee's appeal Learned CIT(Appeals) has erroneously noted that the Assessing Officer has levied the tax only on assessee's concession by withdrawing the claim of exemption. This is an erroneous appreciation of the fact. There is no whisper in the Assessing Officer’s order that he is levying the tax on the basis of assessee's concession. In such circumstances Learned CIT(Appeals)’ reliance upon the decision of Honourable High Court of Karnataka in the case of T. P. Indrakumar (2009 (7) TMI 651 - KARNATAKA HIGH COURT ) is also not applicable, as in the said case it was noted that by offering income for taxation there was nothing else for the Assessing Officer to probe. Here the case is not so. The order of learned CIT(Appeals) is not liable to be sustained. Both the counsel fairly agreed that the issue may be remitted to the file of Learned CIT(Appeals) to consider the issue on merits - Decided in favour of assessee for statistical purposes.
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