TMI Blog2018 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Pramod Kumar Sapra (2017 (11) TMI 567 - ITAT DELHI) has held that where the stay of the assessee, an employee of RIL, and deputed to Iraq outside India was for more than threshold 182 days, salary income of assessee for the previous year could not be held to be taxable because he was not resident of India - remuneration received by the assessee in respect of the foreign employment is not taxable in India under provision of section 5 (2) (a) of the IT Act, 1961 and such income cannot be taxed in India when the assessee stayed outside India for more than 182 days Since the assessee in the instant case has stayed outside India for more than 182 days, therefore, respectfully following the decisions cited (supra) set aside the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he income corresponding to refund of ₹ 4,95,937/-/- was not disclosed in the return of income which was calculated at ₹ 17,09.702/-. The Assessing Officer, therefore, added back the salary income of ₹ 17,09,702/- earned in Korea as income of the assessee from the impugned assessment year. 3. In appeal the Ld. CIT (A) upheld the action of the Assessing Officer by observing as under :- 5.2 Ground nos. 2 and 4: The appellant has challenged the addition of ₹ 17,09,702/- made by the Assessing Officer on account salary received by the appellant in Korea without claiming the benefit section 90 of the IT Act. During the course of appellate proceedings appellant has claimed that for the purpose of employment he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and income received from services rendered outside India cannot accrue or arise or deemed to accrue or arise in India and cannot be taxed in India notwithstanding the fact that the same is credited in bank in India or TDS has been deducted on such income. He submitted that the Ld. CIT (A) in the instant case has given a finding that the assessee has stayed outside India for 247 days which is more than 182 days. Therefore, regardless of being in India for 365 days or more during four preceding previous years, the assessee cannot be treated as resident of India. Referring to the decision of the Delhi Bench of the Tribunal in the case of Pramod Kumar sapra vs. ITO reported 167 ITD 596 he submitted that the Tribunal in the said decision has h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand heavily relied on the orders of the authorities below. 9. I have considered the rival arguments made by both the sides and perused the material available on record. I find on the basis of the Form 26AS the Assessing Officer made addition of ₹ 17,09,702/- which is the income earned by the assessee from his foreign employer received outside India on the ground that tax has been deducted by the employer from such salary income and assessee has not disclosed the same in his salary income. It is the submission of the Ld. Counsel for the assessee that since the assessee was outside India for a period of more than 182 days, (247 days to be precise), therefore, he has become a non-resident and therefore, is not liable to tax on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of ₹ 22,29,385/- made by the Assessing Officer by holding that the remunerations received by the assessee in respect of the employment in Russia and Tanzania are not taxable in India under the provisions of section 5(2)(a) of the Income-tax Act, 1961. 5. We have heard both the sides on this issue. After hearing, we find that during the relevant period, the assessee has stayed in India for 135 days. As per the provisions of section 6(1 )(a) and (c) read with Explanation (a) to section 6(1), the period of stay of an individual should be 180 days for being a resident in India. Thus, the status of the assessee was a nonresident. In view of this fact, the income can be taxed only with the provisions of section 5(2)(a) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the case of ADIT vs. Nandan Singh Chauhan reported in 2011 -TII-27-ITAT-DEL-NRI as under :- We have carefully considered the submissions and perused the record We find is undisputed that the assessee is NRI and he has received income from foreign company for the services rendered outside India. Just merely because he has instructed the salary to be transferred to his FCNR a/c maintained with HSBC bank, Barakhamba Road, Connaught Place, New Delhi can not bring the amount to taxation under Indian Income Tax Act. This view is clearly supported by the tribunal's decision as above. Hence, respectfully following the precedent as above, we uphold the order of Ld. CIT(A) and decide the issue in favour of the assessee and against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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