EMMERICH JAEGAR Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE following two questions of law have been referred to the Court for opinion by the Tribunal, Ahmedabad Bench 'A', under s. 256(1) of the IT Act (the Act) :

(2.) THE assessee -applicant was a foreign technician under the employment of M/s Vereinigte Osterreichische Eiseh, a foreign company. The assessee was deputed for rendering technical services/on -spot clarification to M/s Gujarat State Fertilisers Co. Ltd. (GSFC) under the terms of agreement between GSFC and M/s Voest Alpine. As per the terms of appointment, the assessee was to be paid 'retention remuneration' during the period of his stay in India and such payment was to be made in foreign currency by the foreign employer.

(3.) THE AO, while framing the assessment on 27th March, 1986, negatived the plea on the basis of S.G. Pgnatale (supra) decision in light of the Explanation inserted below s. 9(l)(ii) of the Act by Finance Act, 1983, with retrospective effect from 1st April, 1979. In relation to the alternative contention, the AO observed that the assessee could get relief under Double Taxation Agreement on production of assessment order and proof for payment of tax. That, since no proof was produced, the claim was not entertained. The assessee went in appeal before the AAC, Baroda, who, for the reasons stated in his order dt. 1st May, 1986, confirmed the assessment order by stating that no interference was called for.