TMI Blog2017 (1) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the direct tax avoidance agreement between India and Indonesia and the rulings from authority of advance ruling. Upon assessee's appeal Learned CIT(Appeals) has erroneously noted that the Assessing Officer has levied the tax only on assessee's concession by withdrawing the claim of exemption. This is an erroneous appreciation of the fact. There is no whisper in the Assessing Officer’s order that he is levying the tax on the basis of assessee's concession. In such circumstances Learned CIT(Appeals)’ reliance upon the decision of Honourable High Court of Karnataka in the case of T. P. Indrakumar (2009 (7) TMI 651 - KARNATAKA HIGH COURT ) is also not applicable, as in the said case it was noted that by offering income for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the assessee himself. 3. In the facts and circumstances of the case and law applicable thereto, the Commissioner of Income Tax (Appeals)-4 has committed mistake in accepting the submission made by the counsel in the course of assessment proceedings, when :- a. a concession/submission is made on a point of law which is contrary to the provision of law. b. the Assessing Officer has passed the order on merits and not on the basis of the concession/submission made by the assessee s counsel. Since facts are identical I am referring to figures and facts from ITA 605/Nag/2016.. 3. The brief facts of the case are as under : The assessee was paid the salary of ₹ 8,57,941/- in India and the employer M/s SMS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were shown correctly in the return by the assessee under the assumption that the NRI status makes his income tax free. And never claimed that he has paid any taxes outside country. The TDS is also properly on his salary. Considering the facts and circumstances of the case, asst. may be done accordingly and kindly no penalty may be levied. However the Assessing Officer did not consider the asseessee s submission as above. He proceeded to refer to the provisions of India and Indonesia DTAA, and the section 5 of the Income Tax Act. The Assessing Officer also referred to the decision of authority of advance ruling. Referring to the provisions of above DTAA and the ruling of authority of advance ruling the Assessing Officer proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s preceded and succeeded by services rendered in India and forms part of the service contract of employment, Shall be regarded as income earned in India;] (iii) income chargeable under the head Salaries payable by the Government to a citizen of India for service outside India, 4.3 A plain perusal of this section shows that any salary income which is earned outside India will not fall under salary income which is deemed to accrue or arise in India. 4.4 However, on the other hand, I find that the AO has made the addition mainly on account of letter dtd, 12.11.2010, withdrawing the claim of tax free income of Shri C.M. Singh (the appellant), due to his NRI status considering inability to produce tax documents filed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oluntarily offered income for taxation then there is nothing else for AO to probe as the assessee himself is volunteering to offer the amount as his income. 5.0 Accordingly, relying on the ratio of the above mentioned judgment, I am confirming the addition made by the AO. The grounds of appeal filed by the appellant are dismissed. 6. Against the above order assessee is in appeal before the ITAT. 7. I have heard both the counsel and perused the records. I find that the assessee has submitted a letter before Assessing Officer offering to withdraw the claim of exemption but the Assessing Officer has not at all considered the said letter offering withdrawal of the claim. He has decided the issue purely on merit by considering the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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