TMI Blog2009 (7) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... cial years, he cannot claim the benefit of the provision. - In the present case, the assessee claimed the benefit with reference to the date of entry on September 12, 1990, the assessment year is 1991-92. Then for the four assessment years commencing from 1991-92 which ends in 1994-95 the assessee is entitled for the benefit in terms of the statutory provision. – Held that exemption is available for forty eight months – status after entry is not relevant - 49 of 2004 - - - Dated:- 14-7-2009 - D. V. SHYLENDRA KUMAR and ARAVIND KUMAR JJ. M. V. Seshachala for the appellant. K. P. Kumar for M/s. King and Partridge for the respondent. JUDGMENT The judgment of the court was delivered by 1. D. V. SHYLENDRA KUMAR J.- This ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the financial year in which he arrived in India, the remuneration for such services due to or received by him, which is chargeable under the head 'Salaries', to the extent mentioned below, namely:- . . . (II) where such services commence from a date after the 31st day of March, 1988, but before the 1st day of April 1993, and tax on his income 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." and concluded that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not entitled for such benefit for the reason that on the date of entry, i.e., on September 12, 1990, it was not as though the assessee was entering India for the first time, but the assessee was an entrant to the country even during the year 1988 and had stayed in India for some length of time and until and unless the assessee was a "non-resident" for the four preceding years corresponding to the assessment year in which the benefit is claimed, the assessee does not initially qualify for the exemption provision and, therefore, denied the benefit to the assessee. 8. In his appeal to the Appellate Commissioner, the assessee could not make much headway as the Appellate Commissioner agreed with the view taken by the Assessing Officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e initial year when the benefit is claimed, the assessee should not only be a "not resident" in India but also that during the preceding four assessment years relevant to the date of entry, he should not be a "resident" also and as the assessee was claiming the benefit for the assessment year 1994-95 and during the previous year relevant for this assessment year and to be precise on March 7, 1993, the assessee who had gone out of India re-entered the country and that should be reckoned to be the date of his entry to the country and if so the assessee does not qualify for the exemption as in the last four preceding assessment years, the assessee becomes "not ordinarily resident" and was not a "non-resident" and, therefore, is disentitled for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer was of the view that for the purpose of the assessment year in question, the date of entry on March 7, 1993, should be reckoned and not the earlier date of September 12, 1990, as claimed by the assessee. 20. On the question as to which date should be reckoned is an aspect which is best left to the assessee as it is the assessee who puts forth a claim seeking the benefit of an exemption provision. But when once he claims the benefit to be reckoned from a particular date, the requirements in terms of the statutory provision are (1) that the assessee should qualify for the year of entry in terms of the assessee being not a resident in the year in which he is entering, and (2) is a person who was not resident in all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptember 12, 1990, the assessment year is 1991-92. Then for the four assessment years commencing from 1991-92 which ends in 1994-95 the assessee is entitled for the benefit in terms of the statutory provision. That is what the assessee claims and that it is immaterial as to what happens subsequently as to whether the assessee continuously remains in India and acquires the status of resident or goes back and reenters and consequently there is a change in his status. 23. In the light of this legal position, we are of the view that the question of the Assessing Officer and the first appellate authority treating the assessee's reentry on March 7, 1993, is of no significance as the assessee himself has claimed the benefit from September 12, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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