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2019 (9) TMI 306

..... yer, which was already taxed in USA - DTAA between USA and India - HELD THAT:- Assessee was away from India and was working in USA from 01.08.2003 to 31.07.2004; which includes the period from 01.08.2003 to 31.03.2004 forming part of Previous Year relevant to AY 2004-05 with which we are concerned in the present appeal. Assessee was outside India for the period of more than 182 days during Previous Year relevant to Assessment Year 2004-05 and was a non resident within the meaning of Section 6 of Income Tax Act. During the aforesaid period on 01.08.2003 to 31.03.2004 the assessee was an employee of Tekelec, Inc. NC 27560, USA in a full time capacity in the role of Business Development Director based at Releigh, NC, USA. Perusal of the impugned order of the Ld. CIT(A) shows that the assessee had sent money through City Bank, USA for the maintenance of his son and wife in Delhi; that later on, there was divorce suit filed by the wife of appellant and they got separated in 2006, through court proceeding; that in the Court proceedings, the appellant also got a blow from his opponent lawyer and lost his left eyesight; that the separation happened in 2006; that the wife of the assessee wr .....

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..... -06, the Ld. CIT(A) deleted the aforesaid addition of ₹ 2,32,09,544/- for Assessment Year 2004-05. Relevant portion of the aforesaid impugned order dated 31/01/2012 of the Ld. CIT(A) is reproduced as under: 2. In response to the appeal notice u/s 250 of the I.T. Act, the Appellant s Authorized Representative Sh. Abhijit Chalia, appellant, Sh. Gaurav Jain, CA & Sh. Pravat Lath, CA for hearing with written submissions, judgments and other evidences. The case was discussed with them. 3. The written submissions of the AR dated 31.01.2013 is produced as under for reference: "We refer to the captioned appeals filed before your office. In connection with the same, on behalf of and under instructions of our subject client and in continuation to our earlier submission dated January 10, 2013, January 28, 2013 and January 30, 2013, we would like to submit a summary, which is as under: Background A Tax Evasion Petition dated January 22, 2007 was filed by the estranged wife of the appellant against him with the DDIT, Unit-V(l) alleging that the appellant has concealed particulars of his foreign sourced income which were not offered to tax in India. Basis the same, an assessment o .....

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..... ore various authorities which were all driven with an intention to malign the image of the appellant without any real substance. A copy of a certificate issued by the appellant s General Practitioner certifying that he suffered a penetrating injury to his left eye is enclosed as Annexure 1. 4. I have perused the assessment order, grounds of appeals, written submission and remand report and discussed the matter with the AR of the assessee very carefully. The appellant also appeared before me in the course of hearing. The appellant had taken about 9 grounds of appeal for the A.Y. 2004-05 and 10 grounds of appeal for the A.Y. 2005-06. The appellant .vas away from India and was working in USA for the period 01.08 2003 to 31.07.2004. He was working with a company called Tekelec, wno had confirmed this facts vide its letter dated 16.01.2013. His letter is re-produced for ready reference:- This letter is to confirm that Avijit Chaliya was an employee of Tekelec, Inc, NC 27560, USA from date of August 1st, 2003 through July, 31st, 2004. During this time Mr. Chaliha was employed in a full time capacity in the role of Business Development Director based at Raleigh, NC, USA. He was again out .....

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..... fying that the Respondent assessee was employed with them from 1.08.2003 to 31.07.2004. 4. Copy of the statement showing contributions made by SMARTTRUST Ltd. (ex-employer of the Respondent assessee) towards Employee Provident Fund Account of the Respondent assessee for period beginning 01.12.2000 uptill 30.06.2003. 5. Copy of the Reconciliation statement of Respondent assessee s CitiBank account for AY 2004-05 and 2005-06. 6. Copy of statement showing details of amounts credited to Respondent assessee s Bank Account during AY 2004-05 by his foreign employers. 7. Copy of Letter dated 25.4.2011 filed before the Assessing Officer during the course of assessment proceedings in response to Notice issued under Sector 148 of the income Tax Act, 1961 ( the Act ). 8. Copy of Letter dated 25.05.2011 filed before the Assessing Officer during the course of assessment proceedings, inter alia, furnishing:- a) Brief note elucidating the grant of divorce and terms of settlement between the Respondent assessee and his ex-wife. b) Copy of the Memorandum of Understanding dated 6.04.2010 entered into between the Respondent assessee and his ex-wife, Ms. Gayatri Hazarika Chaliha, thereby stating the te .....

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..... s and submissions. The learned Departmental Representative ( Ld. DR , for short) could not rebut the claim, the submissions and contentions from assessee s side and he could not point out any mistake or error, either on facts or in law, in the aforesaid impugned order dated 31.01.2013 of Ld. CIT(A) as far as Assessment Year 2004-05, with which we are concerned in this appeal before us, is concerned. The Ld. DR left the matter to the discretion of the Bench. (E) We have heard both sides. We have perused the material available on record. We have also considered the judicial precedents brought to our attention. On perusal of the aforesaid impugned order dated 31.01.2013 of the Ld. CIT(A), it is found that the assessee was away from India and was working in USA from 01.08.2003 to 31.07.2004; which includes the period from 01.08.2003 to 31.03.2004 forming part of Previous Year relevant to Assessment Year 2004-05 with which we are concerned in the present appeal. Thus, the Assessee was outside India for the period of more than 182 days during Previous Year relevant to Assessment Year 2004-05 and was a non resident within the meaning of Section 6 of Income Tax Act. Further during the afor .....

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