9911796707
TMI Blog2014 (3) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... India for 331 days in the immediate seven preceding financial years. The assessee was non-resident in 9 out of 10 preceding years under consideration. The assessee visited into India for 331 days during 01.04.1998 to 07.09.2004. The details of the stay in India from financial year 1995-96 are as under :- During his stay in India, the assessee has not earned any income from any source in India nor from any services rendered from which he could drive any income. The return of income was filed on 30.07.2006 declaring income at Rs.47,54,087/- for Assessment Year 2006-07. Thus, for the year under consideration, the assessee was tax resident of India. The assessee claimed that he has received US $ 14,67,000 during the financial year 2005-06 in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in law and on facts in confirming the action of Ld. AO in holding that the income accrued in the year of receipt and too based on surmises and conjectures. 4. That in any view of the matter and in any case, action of Ld. CIT(A) in confirming the action of the A.O. in bringing to tax the receipt of Rs.8,10,00,000/- as income chargeable to tax in India, is bad in law and against the facts and circumstances of the case & in any case, impugned addition of Rs.8,10,00,000/- could not be made & was not factually and legally sustainable. 5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the action of Ld. AO in charging interest u/s 234B of the Income Tax Act, 1961. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted that assessee was a not ordinary resident and the services for which the amount was received was rendered outside India. He also pleaded that the assessee has received the amount in question outside India in his bank account and which has been later on remitted to India, therefore, in no circumstances, it can be said that the amount was received in India. He further pleaded that the amount was received for services rendered abroad and was not in the nature of technical services. It was for mobilizing fund for setting up an investment fund in Mauritius and these services were rendered prior to June 2004 only, when the mutual fund was set up in Mauritius for the same amount was received during the year under consideration. He fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain issue involved in the appeal is whether the amount received by the assessee is taxable in the hands of the assessee as per Income-tax Act, 1961 in India. As per section 5(1) of the Income-tax Act, 1961, the total income of a resident includes all income from whatever source which is received or deemed to be received in India or accrues or arises or deemed to accrue or arise to him in India or accrues or arises to him outside in India. However, there is a proviso to this section which provides that in case of a person not ordinarily resident in India within the meaning of sub-section (6) of section 6 of the Income-tax Act, 1961, the income which accrues or arises to him outside India shall not be so included unless it is derived from a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices for the fund. The affidavit submitted by the assessee placed at page 11 of the paper book which enumerated the services rendered by the assessee while he was settled in USA for setting up Voyager Fund by arranging seed investors and setting up the entity for managing of the said fund. The setting up of the Voyager Fund and investors entity has been completed by 07.06.2004. Thus, the services rendered for the amount received were outside in India prior to 07.06.2004 and the assessee has visited India only for holidays for visiting parents and relatives in India. The facts regarding the services provided has been confirmed by Voyager Investors Fund, Mauritius and Glenhill Capital which are placed at pages 13 - 14 and 69 of the paper b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee's case is covered by the proviso to section 5(1) of the Income-tax Act, 1961 and the income is not chargeable to tax in India. We would also like to mention that this amount was received by the assessee in his bank account maintained outside India and it has been transferred to India only after receiving the same first outside India. The contention of the revenue that it was transferred in a short period to bank account of the assessee in India would not change the basic character of the receipts in the bank account of the assessee held outside India. As held by the Hon'ble Supreme Court in the case of Keshav Mills vs. CIT - 23 ITR 230 (SC), the word "received" shows that the point of first receipt has to be seen. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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