TMI Blog2018 (9) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section 6 clause(a) has been brought into effect from 1st April 2004. That was not applicable to the Assessment Year under consideration. The existing law was considered by the Hon'ble Supreme Court in the aforesaid judgment and the Hon'ble Supreme Court's judgment would bind the Assessing Officer. That part of the income earned outside India would have to be excluded and the assessee would have to be taxed to the extent of the income earned in India. That has admittedly been done. In such circumstances, there was no prejudice caused and this was not a fit case, therefore, to exercise the powers under Section 263 of the Income Tax Act - decided in favour of assessee - Income Tax Appeal No.196 of 2016 - - - Dated:- 23-8-2018 - S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odified his order by invoking Section 154 of the Income Tax Act, 1961. Admittedly the Assessing Officer was possessed of this power and he modified or corrected his order to the extent of the amount of income which could be brought to tax. 6. The Commissioner was of the view that the Assessing Officer did not examine the legal status of the assessee in the course of the assessment proceedings and, hence, initiated action under Section 263 of the Income Tax Act. That is on the footing, namely, the unamended Section 6 sub-section 6 clause (a) of the Income Tax Act, 1961. 7. At the relevant time, this Section read as under :- S.6 Residence in India ---- (6) A person is said to be not ordinarily resident in India in any prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment Order in tune with the law. It does not mean that the Commissioner was authorised by the same legal provision, namely, Section 263 of the Income Tax Act to raise the issue of taxability. Firstly, all proceeds of the entire tax deducted at source and secondly, that part of the refund which was granted to the assessee on the basis that the sum refunded, does not belong to the assessee, but to his employer. 11. The main issue was whether there was indeed any mistake in the Assessment Order and whether that justified exercise of powers by the Assessing Officer conferred vide Section 154 of the Income Tax Act, 1961. 12. In that regard, in paras 12 and 12.1 of the order under Appeal, the Tribunal considered the factual and legal po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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