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2019 (12) TMI 149

..... t” in terms of Section 6 or not - assessee rendered services outside India as employees of IBM India Pvt. Ltd. who have been sent to Switzerland on company’s foreign assignment - TDS was deducted at source u/s 192 - ambit of total income u/s. 5(2) Held that:- while passing the assessment order the AO had followed the permissible view in law which cannot be said to be 'unsustainable in law'. In the circumstances therefore, the jurisdictional facts for usurping the jurisdiction u/s 263 of the Act, being absent, we hold that the action of Ld. CIT was without jurisdiction and all subsequent actions are 'null' in the eyes of law. - Decision in the case of Bodhisattva Chattopadhyay [2019 (11) TMI 1031 - ITAT KOLKATA] followed. - Decided in favor of assessee. - I.TA No.1303/Kol/2019, I.TA No.1307/Kol/2019, I.TA Nos.1309/Kol/2019, I.TA No.1310/Kol/2019, I.TA No.1312/Kol/2019, I.TA No.1313/Kol/2019, I.TA No.1316/Kol/2019 - 29-11-2019 - Shri J. Sudhakar Reddy, AM And Shri A. T. Varkey, JM For the Assessee/Appellant : Shri Nageswar Rao, Advocate For the Respondent : Dr. P. K. Srihari, CIT, DR ORDER PER SHRI A.T.VARKEY, JM All these appeals preferred by the differen .....

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..... nch C on this day of hearing [i.e. on 13.11.2019] and since we were aware that the order/judgment of those appeals were ready to be delivered, we took these appeals for hearing in order to ascertain whether the facts and the issues discussed by the Ld. CIT in these impugned orders are similar/identical to that of the appeals of Shri Bodhisattva Chattopadhyay(supra). Though the Ld. DR vehemently supported the order of the Ld. Pr. CIT passed u/s. 263 of the Act and does not want us to interfere in the impugned order, could not point out any difference in the facts or law or issues in the appeals of Shri Bodhisattva Chattopadhyay(supra). After hearing we note that the present appeals are similar/identical to that of the appeals preferred by Shri Bodhisattva Chattopadhyay & Ors. Vs. CIT (IT & TP)[ ITA No. 1314/Kol/2019] We also note that the impugned order of Ld. CIT in these appeals and that of ITA No. 1314/Kol/2019 is on the same date i.e. 29.03.2019, similarly worded (except the figures) and by the same Ld. CIT (IT&TP) and so we treat these appeals as also heard and the decision in ITA No. 1314/Kol/2019 will be followed mutatis mutandis. Further we note that on 15.11.201 .....

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..... red with by the Ld. CIT u/s. 263 of the Act on the ground that AO s action is erroneous as well as prejudicial to the Revenue. The legal issue raised by all the assessee s in the present appeals, is against the action of the ld. CIT to usurp the revisional jurisdiction u/s. 263 of the Act. Since the facts and questions of law involved in all these cases are identical, we take the appeal of Shri Bodhisattva Chattopadhyay in ITA No.1314/Kol/2019as the lead case, the result of which will be applied mutatis mutandis in all other cases. 3. Briefly stated the facts of the lead case is that the assessee (Shri Bodhisattva Chattopadhyay) was sent by his employer IBM on short term assignment to Switzerland for which he was stationed there for 349 days during the relevant financial year 2013-14. Since his stay outside India for the purpose of employment exceeded 182 days during the relevant year, his residential status for the year under consideration was Non-Resident . During the year, the assessee had received the following emoluments from IBM. a) Gross salary received in India - ₹ 18,65,767/-, and b) Foreign allowances on account of the international assignment, received in Switzerla .....

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..... )of the Act, the ld. CIT issued show cause notice dt. 13-03-2019 to the assessee stating that the taxability of the foreign assignment allowance required reconsideration in view of the provisions of Section 5(2)(b) of the Act which was held erroneously to be non-taxable by the AO in the assessment order passed u/s 143(3) of the Act. 6. In reply, the assessee furnished his objections to the SCN. The ld. CIT however did not agree with the contentions put forth by the assessee. According to the CIT the contract of employment of the assessee was with IBM which was located in India and therefore any and all rights arising from the contract inter alia including the right to receive salary arose only in India. Referring to the term receive or deemed to receive as used in Section 5(2)(b)of the Act, the Ld. CIT observed that the situs of income received would be the place of delivery of cash/cheque. According to Ld. CIT, the point of receipt is the point of payment . He observed that the income was received by the assessee in India when the employer transferred his foreign assignment allowance from their bank account held in Bangalore to Axis Bank s Nostro Account for top-up to the Travel C .....

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..... he AO examined the facts and the relevant documents that the AO took a plausible view on this issue, which is in consonance with this Tribunal s view laid on this precise issue in the case of DCIT Vs SudipMaity & Others in ITA Nos. 428, 416 & 425/Kol/2017. According to the assessee therefore, on the facts of the case, the AO s action of accepting the assessee s claim for exclusion of foreign allowance from the computation of total income cannot be said to an unsustainable view in law and, hence the assessment order cannot be held to be erroneous as well as prejudicial to the interest of revenue, which is a condition precedent to usurp/invoke the revisional jurisdiction u/s 263 of the Act, by the ld. CIT. In the circumstances since the conditions precedent to usurp the revisionary jurisdiction u/s 263of the Act is claimed to be absent in the present case, the assessee has contended that the impugned order is wholly without jurisdiction and is, therefore, bad in law. 8. Having heard both the parties, and on a careful consideration of the facts and circumstances of the case, we find that the ld. CIT invoked the revisionary jurisdiction on the broad allegation that the AO had f .....

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..... s enumerated above but CIT must also further show that as a result of an erroneous order, some loss is caused to the interest of the revenue. Their Lordship in the said judgment held that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. It was further observed that when the Assessing Officer adopts one of the course permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the Ld. CIT does not agree, it cannot be treated as an order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law. 9. In the given facts of the present case, we find that the primary fault found by the ld. CIT to interfere with the order of AO was the alleged non-examination of the relevant facts concerning taxability of the foreign assignment paid through TCC. We are aware of the fact that the Assessing Officer's role while framing an assessment is not only as that of an adjudicator but he is also an investigator. The AO has a dual role to perform i.e. he is an investiga .....

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..... essee also furnished copies of the Swiss tax document for 2013 & 2014 to substantiate that the allowance received outside India from the employer had suffered tax in the country where the services were rendered. Vide letter dated 05.12.2016 [Pages 52 to 53 of paper book], the AR of the assessee filed copies of his bank statements in India to show that foreign assignment allowance was not received by the assessee in India. The AR also furnished copy of certificate by the employer certifying that the foreign assignment allowance was paid for rendering of services in Switzerland. In the letter dated 16.12.2016 [Pages 52 to 53 of paper book], the A/R of the assessee explained the modality of payment of Foreign Assignment Allowance by IBM as under: "We would like to submit before your goodself that the foreign assignment allowance paid by IBM India Private Limited employer of the captioned assessee, to the International Travel Card outside India. The said card is denominated in foreign currencyonly and can be used only outside India. Once an employee is sent on foreign assignment, a travel currency card is issued to the employee by Axis Bank Limited. Upon instructions from IBM, .....

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..... n India, had suffered applicable tax in Switzerland being the country where the services were actually rendered. Having considered these evidences, explanations and applicable legal provisions, the AO recorded the specific finding that the assessee was in India only for 16 days and the rest of the period he was in assignment to Switzerland and had received foreign assignment allowance . All these facts and documents considered harmoniously go on to show that the AO had indeed called for information and documents and after due application of mind passed the assessment order u/s 143(3) of the Act in which he accepted the assessee s plea for exclusion of foreign assignment allowance was not chargeable to tax in India. In such a scenario, the finding recorded by the ld. CIT that the action of the AO in allowing the amount of ₹ 42,97,092/- as exempt from taxation (i.e. the foreign assignment allowance) is in violation of the provision of sec. 5(2)(a) of the Act without any enquiry, is factually erroneous. 11. In order to understand the difference between "lack of inquiry" and "inadequate inquiry" and when it can be termed as erroneous, let us look at the judgme .....

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..... matter was heard. The Assessing Officer has recorded in the order sheet that the case was discussed and the official documents and particulars were filed by the Assessee. 78. Mr. Poddar contended that the fact that the Assessing Officer had issued the notice under Section 142(1) of the Act requiring the assessee to give particulars and to furnish documents in respect of seventeen items indicates that the Assessing Officer had in fact applied his mind. Without application of mind, according to him, the aforesaid notice itself could not have been issued. The fact that all the requisite papers required by the Assessing Officer were duly furnished and the matter was discussed from time to time on the various days indicated above, appearing from the assessment records produced by Mr. Nizamuddin, leave no scope for any doubt as regards the fact that the Assessing Officer after satisfying himself passed the order dated 28th March, 2008. 79. Mr. Poddar also drew our attention to the impugned judgment of the learned Tribunal which reads as follows:- "Therefore, on combined reading of the assessment order for the assessment year under consideration along with the order sheet entries, i .....

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..... sessment, the list of dates produced by Mr. Nizamuddin go to establish that the assessment order was passed after due application of mind. 82. Mr. Poddar contended that there is no provision in the Income Tax Act which requires the Assessing Officer while accepting the claim of the assessee to pass a reasoned order. The reasons, according to him, are required only when an issue is decided against the assessee. He also drew our attention to the judgment in the case of S.S Gadgil v. Lal & Co. [1964] 53 ITR 231, wherein the Apex Court held as follows :- "A proceeding for assessment is not a suit for adjudication of a civil dispute. That an income tax proceeding is in the nature of a judicial proceeding between contesting parties, is a matter which is not capable of even a plausible argument. The Income Tax authorities who have power to assess and recover tax are not acting as judges deciding a litigation between the citizen and the State: they are administrative authorities whose proceedings are regulated by statute, but whose function is to estimate the income of the taxpayer and to assess him to tax on the basis of that estimate. Tax legislation necessitates the setting up .....

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..... additions/disallowances are made. As already observed, we have examined the records of the case and find that the Assessing Officer had made full inquiries before accepting the claim of the assessee qua the amount of ₹ 10 lakhs on account of discrepancy in stock. Not only this, he has even gone a step further and appended an office note with the assessment order to explain why the addition for alleged discrepancy in stock was not being made. In the absence of any suggestion by the Commissioner as to how the inquiry was not proper, we are unable to uphold the action taken by him under section 263 of the Act." 86. Whether the assessment order dated 28th March, 2008 was passed without application of mind is basically a question of fact. The learned Tribunal has held that the assessment order was not passed without application of mind. The records of the assessment including the order sheets go to show that appropriate enquiry was made and the assessee was heard from time to time. In deciding the question Court has to bear in mind the presumption in law laid down in Section 114 Clause - e of the Evidence Act:- "that judicial and official acts have been regularly perfor .....

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..... ng, the conclusion is bound to be wrong. 92. The judgment in the case of Infosys Technologies Ltd. (supra) is distinguishable on facts. The step taken by the CIT under Section 263 in that case was justified because the Income Tax records produced before him did not show that the assessing officer had considered the double taxation avoidance agreement on the basis whereof the claims were made by the assessee. Therefore, that was a clear case to show that the assessment order was passed without considering the relevant pieces of evidence. 93. The judgment in the case of Anusayaban. A. Doshi (supra) does not apply because the High Court in that case was dealing with the need on the part of the learned Tribunal to give reasons in support of its order. 94. The judgment in the case of Hindusthan Tin Works Ltd. (supra) also does not apply because there the Delhi High Court was dealing with the duty of the learned Tribunal to disclose reasons in support of its appellate order. 95. The judgment in the case of S.N. Mukherjee (supra) is clearly distinguishable. The point for consideration in that case was whether it was incumbent for the Chief of Army Staff while confirming the findings and t .....

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..... 9;s order in the present case is the lack of enquiry on the part of the AO in not enquiring into the nature of foreign assignment allowance and its taxability in terms of Section 5(2) of the Act. In this context we find that there is a clear distinction between "lack of enquiry" and "inadequate enquiry". If there is an enquiry, even if inadequate, that would not by itself give occasion to the ld. CIT to interdict and interfere by exercising his revisional jurisdiction merely because he is of the opinion that some more enquiries should have been conducted in the matter. In a case where the ld. CIT finds that the enquiry conducted by the AO is not in accordance with his subjective standards, then the ld. CIT should himself conduct the investigation and thereafter record a clear finding in his order u/s. 263 that the view followed or acted upon by the AO in his order was unsustainable in law and therefore the order of the AO was erroneous. In addition, the ld. CIT should also prima facie show that the erroneous order caused prejudice to the Revenue and thereby twin conditions prescribed by Section 263 are satisfied. If even one condition is not satisfied, then it i .....

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..... of the assessee happened on the express direction of the assessee and therefore the payment was actually effected in India. For the foregoing reasons therefore the ld. CIT concluded that the foreign assignment allowance was taxable in India and in passing the assessment order the AO had not considered these material facts. 15. After due consideration of the facts and material on record as also applicable legal provisions, we however do not find substance in the reasons adduced by the ld. CIT in his order justifying his interference under Section 263 of the Act. It may be true that the allowance in question was received by the assessee pursuant to his employment contract with a company which was tax resident in India. It may also be true that the contract of employment was executed in India. However for such fact alone it cannot be held that assessee s right to receive the entire remuneration accrued or deemed to accrue in India. Admittedly the assessee would not have been entitled to receive the allowance in question if the services were rendered or performed by the assessee in India. The essential pre-requisite for receiving the foreign assignment allowance was that the assessee w .....

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..... the point of payment was the point of receipt as well and therefore since the payment originated from the employer s bank account in India with Deutsche Bank, the income was received by the assessee in India and therefore liable for tax in India under Section 5(2)(b) of the Act. We have no hesitation in holding that this interpretation of the facts and legal position by the ld. CIT is patently wrong. Going by the ld. CIT s conclusion in case of every international transaction where the payment made to non-resident originates from a bank situated in India, the income of the non-resident shall be deemed to be received in India, and therefore liable to tax in India in terms of Section 5(2) of the Act. Accordingly, even where the assessee s make payments for import of goods and for which the payment is made by the Indian importer from his Indian bank account, the foreign supplier of the goods shall be liable to be taxed in India since the point of payment as well as receipt is in India and therefore the income is received in India. Such proposition is devoid of any merit. 18. It is also noted that the ld. CIT was factually incorrect in concluding that the payment of foreign assignment .....

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..... sidered the AO s order to be erroneous is legally not tenable. Even on facts, we find that before the AO the assessee had sufficiently demonstrated that the foreign assignment allowance had suffered appropriate tax in Switzerland. The assessee had furnished before the AO, the copies of the Switzerland tax documents for the year 2013 and 2014 as Annexure 6 & 7 to his letter dated 30.11.2016, which is found placed at pages 79 to 80 of the paper book. The Annexure 6 & 7 referred in this letter by assessee to AO reveals that assessee had been subjected to tax deduction from 01.01.2013 to 31.12.2013 and for 01.01.2014 to 02.05.2014 @ 16.58% and 12.68% respectively. In light of these documentary evidences therefore the ld. CIT s finding that the foreign assignment allowance in question did not suffer any tax in Switzerland and therefore the case of assessee is distinguishable with that of Shri SudiptaMaity decided by this Tribunal reported in (2018) 172 ITD 94 (Kol), since the assessee has not shown his foreign assignment allowance was subjected to tax in Switzerland is therefore per se wrong. 21. In the impugned order the ld. CIT relying on the decision of the coordinate Bench o .....

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..... her the foreign assignment allowance received for rendering of services outside India, was taxable in India or not. We note that the ld. CIT discussed several reasons for holding the amount to be taxable in India but surprisingly his order is conspicuously silent about the applicability of Section 9(1)(ii) of the Act according to which the income could be made liable to tax if and only if the income was received for services rendered in India. We note that this specific issue was adjudicated by the coordinate Bench of this Tribunal in the case of Shri SudiptaMaity (supra) which involved identical facts. In the decided case, the Tribunal has noted the following facts: 4. The brief facts of this issue are that the assessee was an employee in IBM India Private Limited and during the financial year 2012-13 was sent on short term assignment to Switzerland. He had stationed in Switzerland for 331 days during the year under consideration. Accordingly, his residential status for the year under consideration would be Non-Resident. During the year under consideration, the assessee had received the following emoluments from IBM :- a) Gross Salary received in India - ₹ 6,77,128/- and b) .....

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..... . This action of the Ld. CIT(A) was challenged by the Revenue before the Tribunal and the Tribunal upholding the action of the ld. CIT(A) held as under: 7. We have heard the rival submissions. We have gone through the following documents enclosed in the paper book of the assessee:- a) Copy of passport for the relevant period - enclosed in pages 124 to 128 of paper book. b) Certificate issued by IBM India Private Limited explaining the entire facts of payments to assessee including the details of deduction of tax at source thereon together with its purpose - enclosed in page 129 of paper book. c) Statement of Account of Axis Bank TCC for the period 30.11.1999 to 14.12.2015 - enclosed in apges 130 to 145 of paper book. d) List of various Nostro Accounts held by Axis Bank in various countries , out of this list, the relevant Nostro Account from where payments were made to assessee herein is ZurcherKantonal Bank (ZKB) from Account Number 0700-00037.370 - enclosed in Page 146 of paper book. e) Sample instructions given by IBM India Private Limited authorizing the Axis Bank, Bangalore to load currencies to the TCC of assessee - enclosed in pages 147 to 148 of paper book. 7.1. From the fa .....

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..... ia. Thereafter the assessee withdraws the monies for his sustenance outside India . Hence the first point of receipt of these funds loaded / reloaded in TCC for the assessee is outside India. We find that this submission of the ld DR is factually incorrect and is not borne out from the facts narrated above. 7.3. We find that the assessee s case squarely falls under the provisions of Explanation to Section 5(2) of the Act which are reproduced for the sake of convenience as under:- Explanation 1 - Income accruing or arising outside Inia shall not be deemed to be received in India within the meaning of this section by reason only of the fact that it is taken into account in a balance sheet prepared in India. Explanation 2 - For the removal of doubts, it is herby declared that income which has been included in the total income of a person on the basis that it has accrued or arisen or is deemed to have accrued or arisen to him shall not again be so included on the basis that it is received or deemed to be received by him in India. 7.4. We find that the reliance placed by the ld AR on the Co-ordinate Bench decision of Jaipur Tribunal in the case of ADIT (International Taxation) vs Sri Ka .....

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..... confirm the order of the learned CIT(A). 7. In the result, the appeal filed by the Revenue is dismissed. 7.5. We find that the ld DR placed reliance on the Co-ordinate Bench decision of Chennai Tribunal in the case of Sri BalamuthuKadiresan vs ITO in ITA No. 353/Mds/2016 dated 29.4.2016 in support of his contentions. We find that the said decision in para 9.1. of the order had considered the decision of Jaipur Tribunal in the case of ADIT(International Taxation) vs Sri Karthik Vyas in ITA No. 375/JP/2012 dated 31.12.2014 and observed that the Jaipur Tribunal decision is factually distinguishable with the facts before the Chennai Tribunal. Hence the reliance placed on the decision of Chennai Tribunal supra does not come to the rescue of the assessee herein. 7.6. We also find that the Hon ble Karnataka High Court in the case of DIT (International Taxation) vs PrahladVijendra Rao reported in 198 Taxman 551 (Kar) and Hon ble Bombay High Court in the case of CIT vs Avtar Singh Wadhwan reported in 247 ITR 260 (Bom) had held that in the case of a non-resident, when services are rendered outside India , the accrual of income thereon happens outside India and hence the same cannot be broug .....

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..... the order passed by the AO can be deemed to be erroneous insofar as prejudicial to the interest of the revenue if in the opinion of the Pr. CIT or CIT, the order has been passed without making enquiries or verification which should have been made. According to us, however, the insertion of the amendment which has brought in the word in the opinion of Principal commissioner or Commissioner cannot be read in isolation. And it has to be kept in mind that Explanation cannot over-ride the substantive provision of the law which the Explanation only tries to explain/clarify. Before we advert further, let us look at Section 263 of the Act, which is reproduced as under:- 263. (1) The Principal Commissioner or] Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the ass .....

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..... the expiry of two years from the end of the financial year in which the order sought to be revised was passed.] (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, [National Tax Tribunal,] the High Court or the Supreme Court. Explanation.-In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded." 26. A reading of Section 263 of the Act and the Explanations as well as the amendments brought in by the Finance Act, 2015, w.e.f. 01.06.2015, by inserting Explanation 2, we note that Explanation -2, is a deeming provision and the well settled position of law is that while construing a deeming provision, it has to be strictly interpreted and that the legal fictions should not be stretched beyond the purpose f .....

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..... order, then only the deeming provision of Explanation-2 can be pressed into service for rendering an assessment order as erroneous, insofar as prejudicial to the Revenue, which is the jurisdictional fact & law required for the ld. Pr. CIT/CIT to invoke revisional jurisdiction u/s 263 of the Act. 28. Coming to the expression in Explanation -2 in the opinion of the Ld. CIT , it cannot be an arbitrary opinion bereft of facts or law by the Ld CIT. It must be the considered opinion of the CIT which is based on the correct facts and in accordance to well established principles of law. The aforesaid clause only provides for situation where inquiries or verifications should be made by reasonable and prudent officer in the context of the case. Such clause cannot be read to authorize or give unfettered powers to the Commissioner to revise each and every assessment order. The applicability of the clause is thus essentially contextual. It has to be the opinion of a prudent person instructed in law. The Hon ble Supreme Court in Maneka Gandhi Vs. Union of India reported in 1978 AIR (SC) 597 has laid down the law that a public authority should discharge his duties in a fair, just and reasona .....

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..... essment order that the assessee had received foreign assignment allowance. So, the issue of foreign assignment allowance to the tune of ₹ 42,97,092/- which is the bone of contention in this case was indeed considered and examined by the AO. We also note that the assessee had also furnished before the AO requisite documentary evidences which proved the foreign assignment allowance which was excluded from the ambit of total income taxable in India, had suffered applicable tax in Switzerland being the country where the services were actually rendered. Having considered these evidences, explanations and applicable legal provisions, the AO recorded the specific finding that the assessee was in India only for 16 days and the rest of the period he was in assignment to Switzerland and had received foreign assignment allowance . In such a scenario, the finding recorded by the AO, cannot be termed as a case of no-enquiry at all in respect of foreign assignment allowance of the assessee. Therefore, the ld. CIT s view that the action of the AO in allowing the amount of ₹ 42,97,092/- as exempt from taxation is in violation of the provision of sec. 5(2) of the Act without any enquiry .....

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