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2015 (9) TMI 1168 - ITAT KOLKATA

2015 (9) TMI 1168 - ITAT KOLKATA - TMI - Denial of exemption under section 10(14)(i) - Held that:- 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 .....

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. 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 Pijush Dey, F.C.A., appeared on behalf of the assessee and Shri Anil Kumar Pande, ld. JCIT, Sr. D.R. rep .....

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onent received the Appeal Order No 451/CIT(A)-XIV/08-09 dated 22.03.2010 for the Asst.. Year 2006-07, due to lost of the said order he could not file the appeal to Hon ble Income Tax Appellate tribunal within the prescribed time limit. 2. That the deponent was frequently travelling outside India for several times starting from the year 2010 to the year 2012 on account of several projects assigned by the employer, i.e. TCS Ltd., and also the deponent was extremely busy in taking care of his spous .....

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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 .....

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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, in order to impart substantial justice to assessee, we condone the delay in filing the present appeal of assessee and admit the appeal. 6. Brief facts of the case are that the assessee filed his return of income declaring total income of ₹ 6,72,670/-. The assessee in his return claimed that living allowance paid while o .....

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ased, perverse, bad in law and is liable to be quashed. 2. That, on facts 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 o .....

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eriod of stay of the appellant in USA, option of the appellant to be accompanied by his spouse, expense on travel of the spouse being borne by the employer and choice of not going for deputation available to be appellant. 4. That, on facts as well as on law, the Learned CIT(A) is not justified in considering 'Living Allowance' as normal salary merely because that the same was paid on monthly basis and the appellant was not required to submit the supporting bills/vouchers to prove the spe .....

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s and perused the material available on record. It is not disputed that the facts in the present case are identical to the facts obtaining in the case of ITO, Ward-27(4), Kolkata -vs.- Shri Saptarshi Ghosh, Kolkata and others in ITA No. 915/KOL/2010 for the AY 2006-07 & others. After hearing both the 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 .....

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mployees remained same and the additional amounts were paid only for the purposes of additional routine expenses in USA. This is evident from deputation agreement, which deals with compensation and benefits noted above. It is specifically mentioned in para 2.3 that during the period of deputation, the employee will continue to receive his salary and benefits in India. This clearly shows that place of posting had not changed, which is basic ingredient for deciding whether a person had been transf .....

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er. But that should not detract us from examining the true import of the term tour . Ld. CIT(Appeals) has also pointed out that as per the deputation agreement, the assessees were entitled to take their families but that also cannot be a basis for deciding whether the assessees were to be treated on tour in terms of Rule 2BB(1)(b) or not because that Rule does not prohibit taking the family on tour. We are, therefore, of the considered opinion that keeping in view the entirety of the facts and c .....

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nt 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 exemption under section 10(14)(i) read with Rule 2BB(1). It does not lay down separate consideration for non-residents vis-à-vis residents. 25. Further, one more aspect which is to be considere .....

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ceived by him or unreasonable with reference to the nature of the duties performed by the assessee . Further, the assessees had submitted that FBT must have been paid by the employer. However, as noted earlier, employer has not paid FBT. In our opinion, the considerations for eligibility of exemption under section 10(14)(1) are entirely different and nothing turns around on the applicability or non-applicability of the provisions of FBT. In view of above discussions, the appeals of the assessees .....

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