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TMI Blog2014 (1) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... a as the assessee was working in Whirlpool China and salary accrued and arose in the China only and during the relevant financial year, the assessee was out of India for 236 days. In view of provisions of Income-tax Act, 1961, assessee was not liable to be taxed in India. Assessee was non-resident during the relevant financial year. Only the income received or deemed to receive in India and income arises or deemed to arise in India are taxable in India. Assessee's income neither received or deemed to receive or arises or deemed to arise in India. The Assessing Officer did not accept the assessee's contention and make the assessment. The assessee filed an appeal before the CIT (A) and CIT (A) has granted the relief to the assessee by holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside India is not taxable in the case of non-resident. As has been explained in letter dated 13-10-2008 by the assessee was employed with M/s. Whirlpool China for the period 01-08-2004 to 30-06-2006 and his salary was credited in HSBC, Hong Kong, copy of which has been filed by the assessee at page 73-81 of the paper book. I have also perused the copy of letter dated 19-12-2008 filed by the assessee during assessment proceedings submitting the copy of working visa in China. Therefore, all these evidences establish that assessee was non-resident and earned salary outside India which was received by him outside India and therefore such salary amounting to Rs.1,05,77,063/- was not taxable in India. Thus the Assessing Officer is directed to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na from 1-08-2004 to 30-06-2006. This certificate has not been controverted by AO in the assessment order. Thus, after taking into account the entire facts and circumstances of the case, I hold that the salary income of Rs.l,05,77,063/- was not taxable in India and AO is directed to exclude the same from the taxable income of the assessee appellant." Now, the revenue is in appeal before us by taking the following grounds of appeal :- "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in: i) holding that salary income amounting to Rs.1,05,77,063/- of the assessee was not taxable in India (which was earlier declared taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant financial year, the assessee's stay in India was less than 182 days. The residential status of the assessee was not resident during the relevant period. Similar situation has been considered by the Authority of Advance Ruling in the case of Anurag Chaudhary, reported in 322 ITR 293wherein the Authority for Advance Ruling held as under :- "Sec. 6 sub-section (1), which determines the residential status of an individual, requires that either the applicant should have been in India for 182 days [vide cl. (a)] or for 60 days or more, if he was in India for 365 days or more in four preceding years [(vide cl. (c)]. The Explanation to this sub-section provides that a citizen of India who leaves India for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant period. It necessarily follows that the applicant was a 'non-resident' during the relevant period. Consequently his income that accrued outside India in USA by reason of his employment there cannot form part of the total income taxable in India. The Department in its comments has also clarified that the applicant may be treated as NRI as he remained in India for 123 days during the financial year 2008-09." The issue regarding leaving India for purpose of employment outside India was considered in the case of British Gas India (P) Ltd. Reported in 285 ITR 218 (AAR) wherein it was held as under :- "The contention of the CIT that he has been in India for more than 60 days is supported by cl. (c) of s. 6(1) b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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