Dipak Kumar Sen, J. - (1.) K. Okumo, the assessee, a Japanese national who was an engineer in the employment of Fuji Electric Co. Ltd. of Japan, came to India initially on February 13, 1971, to supervise an electricity project at Jaldhaka in West Bengal set up by the West Bengal State Electricity Board, hereafter referred to as the Board. He left India on September 13, 1971. The assessee again came to India on May 30, 1972, for work in the same project and finally left India on November 4, 1972. The Government of India approved the services of the assessee for the purpose of exemption from income-tax under Section 10(6)(vii) of the Income-tax Act, 1961.
(2.) In the assessment year 1973-74, the accounting period ending on March 31, 1973, the assessee was assessed to income-tax. The Income-tax Officer found that under the order of the Government of India dated April 19, 1973, whereby the services of the assessee from June 30, 1972 to October 29, 1972, were approved under Section 10(6)(vii) would not entitle the assessee to claim exemption of his income from being taxed inasmuch as the assessee had come to India in an earlier year, namely, 1971, and was a resident in India in one of the four financial years immediately preceding the financial year involved. As such, it was held that the assessee did not qualify for exemption from income-tax in the assessment year involved. The salary of the assessee was, accordingly, assessed to income-tax and inasmuch as the Board had agreed to bear the tax payable by the assessee, the amount of tax to be paid by the Board was treated as perquisite in the hands of the assessee and was grossed up. The total income was determined at Rs. 11,33,500.
(3.) Being aggrieved, the assessee through the Board preferred an appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner held that inasmuch the assessee had been a resident in India in one of the four financial years immediately preceding the financial year in question, he was not entitled to claim exemption from income-tax.;