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TMI Blog2014 (12) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in deleting the addition without appreciating the facts and evidence in the Form No.16 A issued by M/s Louis Berger Group Inc. where TDS of Rs. 15,779/- was deducted on Professional/Technical receipts." 3. Briefly stated the facts giving rise to this appeal are that the Assessing Officer observed that in the return of income, the assessee declared income at Rs. 1,94,533/- and the return was filed on 31.7.2005. The assessee is a retired government servant and provides consultancy services after retirement. The main income of the assessee is from pension, house property, consultancy and other sources. From the return of income, the Assessing Officer observed that the assessee has shown exempt income of Rs. 8 lakh on account of consultancy provided in Bhutan as he has claimed himself as Non-resident Indian (NRI) for the purpose of calculation of taxable income in India. During the course of assessment proceedings, the Assessing Officer asked the assessee to furnish photocopies of the passport with visa in support of his claim of NRI status. The Assessing Officer also issued a show cause notice on account of income from consultancy provided in Bhutan on 28.9.2007. As per reply of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee in Bhutan which were in the nature of salary and subsistence allowance only. The DR supported the assessment order and submitted that the impugned order may be set aside by restoring that of the order of the Assessing Officer. 6. Ld. counsel of the assessee submitted that the Assessing Officer misunderstood Explanation (a) attached to section 6(1)(c) of the Act because the assessee was an NRI for the purpose of Income Tax Act and as per Explanation (a) which squarely applies to the facts of the case as the stay of the assessee in India during the year under consideration was less than 182 days. Ld. counsel has also drawn our attention towards Paper Book page no. 5 and 6 wherein the assessee has furnished a copy of the agreement dated 31.5.2004 entered into between the assessee and the Louis Berger Inc. The counsel submitted that as per basic condition of the agreement, it is clear that the relationship between the assessee and the LBG was that of employer and employee. Therefore, Explanation (a) attached to section 6(1)(c) of the Act is squarely applicable to the facts and circumstances of the case in favour of the assessee which clearly establish that the status of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days' had been substituted;' 9. From the assessment order, we observe that the Assessing Officer has made the addition by holding that the assessee does not fall in the category of NRI as per the provisions of section 6(1)(c) of the Act. The Assessing Officer has not disputed this fact that the assessee had left India on 8.06.2004 for taking up employment in Bhutan with Louis Berger Group Inc (LGB) and remained there continuously for almost ten months till the end of the previous year 2004-05. Thus, the assessee stayed in India only for a period of 68 days during the previous year under consideration. As per above Explanation (a) attached to section 6(1)(c) of the Act, the status of the assessee becomes that of NRI as the stay of assessee in India in the relevant previous year was less than 182 days. 10. The Commissioner of Income Tax(A) has allowed the appeal of the assessee with following observations and findings, which we are reproducing for the sake of clarity and transparency in our findings:- "6.3. It has been submitted that acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be any joining date in the case of profession while in this case, the joining date was 1.6.2004. In profession, fixed monthly amount and disallowance are not given which were given to the appellant in the instant case. 6.6 It has further been submitted that the fee for services rendered as well as the subsistence allowance are very much covered under the definition of Salary u/s 17(1) of the Act. Further, the employer, LBG, had issued a salary certificate which is equal to salary certificate in Form No. 16 under the Indian Income-tax Act. In India, salary certificate is given in Form No. 16 and consultancy/professional certificate is given in Form No. 16A. The employer has clearly mentioned in the Form that it was in lieu of Form NO.16 which also indicates that the appellant was in receipt of salary & allowances. 6.7 It has also been pointed out that in Assessment Year 2004-05, the appellant was carrying on profession and his gross receipts were Rs. 5,69,500/- out of which he incurred expenditure of Rs. 4,27,253/- and the net income of Rs. 1,40,872/- was shown by the appellant in the return which was filed on 31.10.2004 vid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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