9911796707
TMI Blog2015 (9) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. CIT(Appeals) in deleting the interest levied under section 234B in respect of the disallowance of the living allowance under section 10(14) of the Act. 6. At the time of hearing, ld. D.R. vehemently supported the order of Assessing Officer and pleaded that the order of ld. CIT(Appeals) was liable to be reversed. 7. We have heard the ld. D.R. and perused the material available on record. From the record, we find that the issue of exemption under section 10(14)(i) in respect of living allowance was squarely covered by the decision of the Coordinate Bench of this Tribunal in the case of other TCS employees, most specifically in the case of ITO -vs.- Sri Saptarshi Ghosh & Others in ITA No. 915/Kol/2010 & others dated 30.09.2011, wherein the Coordinate Bench of this Tribunal has held as under :- "22. Now, we proceed to examine the facts of the present case in the context of principles discussed above. In order to appreciate the correct position in this regard, we reproduce hereunder certain contents from various documents. Before us, the details in regard to Saptarshi Ghosh have been filed. In the deputation letter dated 19.05.2005, it has been, inter alia, stated as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge and skills are of substantial value to the Employer for dissemination by the Employee to the 32 Employer's employees in India upon the Employee's return to India after the conclusion of the Deputation. D. The Employer is willing to send the Employee on Deputation only if the Employee agrees, and as provided below the Employee does agree and commit, to complete his/her Deputation in the United States, and to return to India at the conclusion of a Deputation in order to impart the experience, knowledge and skills acquired on the Deputation to employees of the Employer in India. Therefore, in consideration of the mutual covenants and conditions set forth below and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by both parties, the parties agree as follows: I. OVERSEAS DEPUTATION 1.1. General Provision. The Employee is an employee of the Employer pursuant to a Service Agreement entered into in India upon commencement of the Employee's employment The Service Agreement, and all other current agreements between the Employee and the Employer regarding the employment relationship in India, remain in full force and effect This Agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Initial Payments- Before the Employee embarks on his/her Deputation, the Employer will make the following payments to the Employee: (a) The Employer will compensate to the Employee an amount in rupees that is designed to enable the Employee to purchase any usual and necessary outfits for the Deputation, and to cover initial incidental travel-related expenses in embarking on this overseas assignment. (b) The Employer will compensate the Employee an amount in US. dollars or travelers cheques for the Employee's use in his/her discretion for expenses such as housing and transportation expenses incurred on arrival in the United States and for the purpose of settling down. (c) The amounts and details of these payments may be specified in the DTA and/or other documents furnished to the Employee prior to the commencement of a Deputation. 2.2. Airfare- Before the Employee embarks on his/her Deputation, the Employer will obtain a round trip airline ticket for the Employee's travel between India and the United States. The Employer will bear the cost of this airfare, and this amount will not be included in gross compensation. The Employer shall also bear the cost of transportation with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of your deputation is extended beyond the scheduled 12 month period, the extension shall be reflected in a mutual written agreement. 4. The following specific provisions shall govern your deputation :- (A) OverseasTravel and Reimbursement TCS shall be used travelers cheques, which is designed for your use in meting initial expenses for transportation and housing when you arrive in the United States. (B) Salary and benefits in India :- As stated in the Deputation Agreement, you will continue to receive your salary and benefits in India during the period of the Deputation, subject to any tax requirements of the United States and its states. (C) Compensation in the United States.. In addition to the compensation and benefits you currently receive and will continue to receive in India who on Deputation, you shall receive additional compensation in the United States in the gross amount of US$50000 less deductions required by law or otherwise voluntarily authorized by you. This compensation shall be for living and other expenses in the United States. (D) Total Gross Compensation Amounts of salary paid by TCS in India (under Paragraph 4 (b) above) and the additional compensati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 considered is with regard to actual incurring of expenditure. In this regard, we find that the issue is squarely covered by he decision of ITAT, Mumbai dated 21.04.2006 in ITA Nos. 5561 & 5570/Mum./2002 for the assessment years 1997-98 and 1998-99 in the case of Madanlal Mohanlal Narang -vs.- ACIT(supra), wherein it has been held that "it is not open to the revenue to call for the details of expenses actually incurred unless the specific allowance are disproportionately high comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
