TMI Blog2015 (9) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... nted out by the ld. senior counsel for the assessees, DTAA would come into play only when a particular receipt is taxable in both the countries - Decision in the case of Saptarshi Ghosh [2011 (9) TMI 397 - ITAT, KOLKATA] followed - Decided in favour of assessee. - I.T.A. No. 1530/KOL/ 2012 - - - Dated:- 1-9-2015 - Shri S.V. Mehrotra and Shri Mahavir Singh,JJ. For The Assessee : Shri B.K. Ghosh, FCA and Shri Pijush Dey, F.C.A., For The Department : Shri Anil Kumar Pande, JCIT, Sr. D.R., ORDER Per S.V. Mehrotra: This appeal has been filed by the assessee against the order of ld. Commissioner of Income Tax (Appeals)-XIV, Kolkata dated 22.03.2010 for the assessment year 2006-07. 2. Shri B.K. Ghosh, F.C.A. and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with Memorandum of Appeal. 4. That delay in filing the said appeal before the Hon ble Income Tax Appellate Tribunal is unavoidable of the deponent for which deponent cannot be held responsible. So the delay for the filling of said appeal should be condoned by the Hon ble Tribunal by considering the difficulties faced by the deponent. Sd/- DEPONENT Ld. counsel further pointed out that the issue under consideration is squarely covered by the decision of this Tribunal in the case of several employees of T.C.S. Limited vide order dated 30th September, 2011 in ITA No. 915/KOL/2010 for the AY 2006-07 in the case of ITO, Ward-27(4), Kolkata vs.- Shri Saptarshi Ghosh, Kolkata and others. 4 Ld. Departmental Representative f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as on law, the Learned CIT(A) has erred in confirming the denial of exemption under section 10(14)(i) of the Income Tax Act, 1961 read with rule 288(1) of the Income Tax Rules 1962 in respect of 'Living Allowance' of ₹ 7,71,685/- received by the appellant from his employer, TCS Limited while he was on deputation in USA in connection with the project of the employer by wrongly invoking the provisions of section 2(24)(iii), section 10(14)(ii) and the Rule 288(2). 3. That, on facts as well as on law, the Learned CIT(A) is not justified in considering the 'deputation' of the appellant in USA on employer's project as 'transfer' to USA by the employer in disregard of the terms and conditions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties, we find that the issue is squarely covered by the decision of this Tribunal dated 30th September, 2011 in ITA No. 915/KOL/2010 for the AY 2006-07 in the case of ITO, Ward-27(4), Kolkata vs.- Shri Saptarshi Ghosh, Kolkata and others, wherein the Tribunal has held as under:- 24. From the above noted contents of deputation letter and agreement, etc. it is clear that the place of posting did not change to USA and the employees were sent there with reference to the specific projects though the projects could change at the instance of employer. The employees were to report back to the employer and serve the employer after acquiring skill from USA projects. The salary structure of employees remained same and the additional amounts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated on tour and, therefore, eligible for claiming deduction under section 10(14)(i) read with Rule 2BB(1)b). Further, we find that the issue relating to living allowance has been considered by various decisions relied upon by the ld senior counsel for the assessees with reference to non-residents. Ld. CIT(Appeals) has distinguished all such case laws on the ground that they relate to non-residents and not with reference to the employees being sent abroad. We do not find any rationale in distinguishing the case laws noted in ld. Senior counsel s submissions merely on the ground that they related to non-residents. Non-residents coming to India and Indian going abroad, are to be considered on same footing as far as the issue is in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Special Bench in the case of Sumit Bhattacharya vs.- ACIT reported in [2008] 300 ITR page 347 (Mumbai)(SB). In view of the above, the Departmental appeals are dismissed. 27. Before parting, we may further observe that, in any view of the matter, the entire controversy is almost revenue neutral because even if it is held that assessees were not eligible for exemption under section 10(14)(i) in respect of living allowance, then in view of DTAA with USA, the assessees would become entitled to get tax credit in respect tax paid on living allowance in USA. However, as we have already held that living allowance is not taxable in India, therefore, assessees are entitled for exemption under section 10(14(i). Therefore, they cannot clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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