TMI Blog2006 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... cian and was not a resident in India in any of the four financial years immediately preceding the financial year in which he arrived in India and the tax is born~ by the employer and, therefore, the assessee is covered under the provisions of section 10(5B) of the Act. However, the Assessing Officer disallowed the exemption claimed by the assessee under section 10B of the Act. On appeal, the CIT(A) has confirmed the action of the Assessing Officer by observing as under:- "6. I have considered the matter carefully. I have no objection to entertain additional evidence as submitted on behalf of the appellant. On a closer look of the provisions of section 10(5B) read with the Notification No. S.O. 569(E), dated27-7-1993issued by the Government under clause (iii) of section 10(5B) the following field of technical specialization is covered thereunder:- 'Information technology including computer architecture systems, platforms and associated technology, software development process and tools.' 7. Admittedly, the claim of exemption has been made by the appellant under this specific particular provision of law. As the appellant had relied upon the advance ruling given in the case of V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusal of the relevant clause of the notification would reveal that there is not even an indirect mention of the cellular technology or networking technology for that matter. If at all there is some connection between the two it is just that a computer and related software may be used in the same manner in which it is used in other technical fields or even in offices, factories or in research assignments for that matter. Thus when the appellant has not at all rendered services in the field notified specifically for exemption under section 10(5B), the exemption claimed cannot be granted to him notwithstanding any amount of evidence he may adduce in support of his status firstly, as a "non-resident" or a "not ordinary resident" and then with regard to his claim as a technician. The ld. AR brought to my notice the advance rulings in the case of Amir Zai Sangin [1999] 238 ITR 189 and V.R. Heffern v. CIT [2000] 241 ITR 299 wherein it has been opined that telecommunications is covered under the field of Information Technology and that therefore by the notification issued under section 10(5B). A perusal of the rulings, however, does not, however, satisfy the basic questions of the two fiel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m a date after 31-3-1993 of the Government or of a local authority or of any corporation set up under any special law or of any such institution or body established in India for carrying on scientific research as is approved for the purposes of his clause by the prescribed authority or in any business carried on in India and the individual was not resident in India in arty of the four financial years immediately preceding the financial year in which he arrived in India and the tax on his income for such services chargeable under the head "Salaries" is paid to the Central Government by the employer (which tax, in the case of an employer, being a company, may be paid notwithstanding anything contained in section 200 of the Companies Act, 1956 (1 of 1956), the tax so paid by the employer for a period not exceeding forty-eight months commencing from the date of his arrival in India: Provided that the Central Government may, if it consider it necessary or expedient in the public interest so to do, waive the condition relating to non-residence in India as specified in this clause in the case of any individual who is employed in India for designing, erection or commissioning of machiner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant exemption liberally in respect of foreigners working inIndiaand having expertise and knowledge in various fields. Thus, the exemption as contemplated under the provisions of section 10(5B) of the Act is available to a nonresident individual who is a 'technician' having a specialized knowledge and experience in the information technology including computer architecture systems. The assessee is a specialist in the area of Wireless Telecommunication (Field Operations) having a vast engineering experience. His formal education included a Degree in Bachelor of Science fromColumbiaCollegeand graduate honours in Telecommunications. He is also affiliated to the Society of Logistics Engineers. The copy of his degree and a certificate from the Indian employer certifying his technical experience is placed at Annexure-4 to the paper book. It would appear from the Indian employer's certificate that the job responsibilities of the assessee encompassed various technical aspects of the business of its employers, which required extensive application of his technical knowledge, skill and experience. The Ld. CIT has agreed that it may not be necessary to insist on formal technical qualification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression "information technology" as elaborated in the notification of27-7-1993also covers the area of cellular network." 8. It may be mentioned that as per section 245S of Income-tax Act, ruling ofAARare binding only on the applicant and the concerned Commissioner in respect of transaction in relation to which ruling had been sought but at the same time the ruling ofAARhas the persuasive value. Hence the same is required to be taken into consideration with respect by the Tribunal while deciding the similar issue. In view of what has been discussed, we are of the view that the finding of the Ld. CIT(A) that the applicant does not qualify for exemption under section 10(5B) are not legally justified inasmuch as the same are not based on any legal precedent. The observation of the Ld. CIT(A) seems to be based on his personal perception about the information technology. We, therefore, set aside the impugned order. It is, however, seen that other condition viz., "the assessee was not resident in India in all the four financial years immediately preceding the financial year in which he arrived in India" has not been examined by authorities below. For this limited purpose the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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