TMI Blog2021 (2) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(2) HELD THAT:- On a reading of the order of the Tribunal reveals that on the basis of the written submission made by the assessee as well as particulars found in Form-16 issued by his employer, the authorities negatived the claim of the appellant. Assessee has to be a non-resident . The word non-resident is defined in Section 115C(e) of the Act. It means an individual, being a citizen of India or a person of Indian Origin who is not a resident . As per the worksheet submitted by the assessee, he was residing in India from 1-4-2002 to 31-3-2009 (i.e.) 7 years. But preceding to the assessment year 2010-11, he had stayed in India only for 401 days. Thus, the learned counsel for the appellant argued that while purchasing the stock option in the year 2005, the assessee was a resident of the USA and out of the income realized in the USA, he purchased those stock options and hence, it will not come under the income earned in India. Appellant replied that the assessee sent particulars of his stay at the USA preceding to the assessment year with a copy of passport to prove his residential status, but without appreciating those documents, the Commissioner erroneousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,49,709/-(viz., the exempt income) has to be treated. There is an error in Form-16 issued by the assessee's then employer Google India Private limited, as it erroneously included the exempt income of ₹ 1,19,49,709/- as part of the taxable income. The said error in Form-16 issued by the then employer must be because of the fact that the employer could not go into the exact residential status of its employee, which involves complicated questions of law viz., interpretation of Section 6(6) (a) and 5(1) (c) of Income-tax Act and hence, as a measure of abundant caution, erroneously deducted income tax for the said exempt income of ₹ 1,19,49,709/-. Thus, an excess income tax of ₹ 36,92,460/- was erroneously deducted by Google India Private Limited and paid to the Indian Government. Hence, the assessee is entitled for refund of the said excess tax erroneously paid on behalf of the assessee. 3. Accordingly, in the assessee's income tax return for the assessment year 2010-11, the assessee reported the aforesaid income of ₹ 1,19,49,709/- under Exempt income because of his USA income and NOR status as per Section 5(1)(c) and Section 6(6)(a) of Income-tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the Assessee on such stock options issued by the Holding Company in USA is sufficient to hold that it is taxable under the head 'salary' as 'perquisites' with reference to the provisions under section 5(1) (c) and 6(6) (a) read with Section 17?; (iii) Whether such tax can be imposed by the Revenue under section 143(1) of the Act after issuance of Notice under section 143(2) of the Act?. 8. The learned counsel appearing for the appellant-assessee submitted that the Appellate Tribunal failed to appreciate the documents submitted by the assessee, in order to prove the tax exemption on income derived from selling stock options. Further the learned counsel made reliance on the document in page No. 19 of the typed set of papers. 9. On a perusal of the documents, it is seen that it is a worksheet submitted by the assessee along with Form-16. In that worksheet, the assessee claimed that he comes under the NOR (Not Ordinarily Resident) category for the assessment year 2010-11. He also furnished particulars of the days, in which he stayed in India from 1-4-2002 to 31-3-2009. Even as per the said document, the assessee had stayed in India only for 401 days, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the total income of the assessee for the assessment year 2010-11, his employer Google India Private Limited mentioned that the amount of ₹ 11,949,709/- comes under the head of stock options shown under part of perks , thereby, he is liable to pay the part of perks which amounts to income earned by the assessee. But according to the assessee, he acquired asset viz., 'stock' from employer's stock option scheme, when he was serving abroad in parent-company prior to the assessment year 2010-11, when he was non-resident. Without considering this fact his employer erroneously treated the sale proceeds of stock options as 'perquisites' and included that as income in Form-16. 15. The learned counsel for the appellant submitted that immediately the assessee sent a letter dated 5-5-2011 to the Department, claiming for refund of ₹ 36,92,337/- which was erroneously deducted by his employer. The said letter has also been enclosed in the typed set of papers at page No. 13. The department also sought particulars from the assessee about his NOR status, but instead of appearing before the Commissioner in person, the assessee gave a reply along with particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X
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