Income-tax---

----Income---Pension---Pension earned in Malaysia and received in India-- Not taxable in India---Indian Income Tax Act, 1961.

Held, that, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the pension was earned in Malaysia and the receipt of the said pension was only in the nature of remittance to India and accordingly the inclusion of the said pension amount in the total income of the assessee was not correct and it was to be excluded from the total income of the assessee.

CIT v. Kalyanakrishnan (A.P.) (1992) 195 ITR 534 (Mad.) fol.

C. V. Rajan for the Commissioner.

Nemo for the Assessee.

JUDGMENT

K. A. THANIKKACHALAM, J.----In pursuance of the order of this Court, dated February 23, 1981, in T. C. P. Nos. 282 and 283 of 1980, the Tribunal referred the following question for the opinion of this Court under section 256(2) of the Income Tax Act, 1961:

"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the pension was earned, in Malaysia and the receipt of the said pension was only in the nature of remittance to India and accordingly the inclusion of the said pension amount in the total income of the assessee was not correct and, therefore, it was to be excluded from the total income of the assessee?"

The point for consideration is when the assessee earned pension in Malaysia and received the same in 'India, whether such pension amount is includible in the total income of the assessee?

The Tribunal held that the pension earned in Malaysia and received at India is not taxable in India. While coming to this conclusion, the Tribunal followed an earlier order of its own in the case of one Shri A. P. Kalyanakrishnan' for the assessment years 1970-71 and 1971-72. A. P. Kalyanakrishnana's case came up for consideration before this Court and the decision taken thereon is reported in CIT v. A. P. Kalyanakrishnan (1992) 195 ITR 534 wherein this Court held that inasmuch as the pension was earned outside India and the same was received in India where the assessee is living, it is earned not in India and, therefore, the pension amount cannot be included in the total income of the assessee. In view of the above said decision, we answer the question referred to us in the affirmative and against the Department.

M.B.A./3281/FCReference answered.