K.G. Bansal, A.M. These two appeals of Revenue in case of aforesaid assessee s were argued in consolidated manner by learned Departmental Representative and learned counsel for assessees. Therefore, we find it convenient to pass consolidated order. Appeal No. 4506/Del)/2003 in case of Shri Hiromi Hirose 2. In this appeal, Revenue has taken only one ground to effect that on facts of case and in law, learned CIT(A) erred in holding that salary and bonus received by assessee outside India is not taxable in India under s. 5(1)(c) of IT Act, specially when as per terms of employment, his office was based in New Delhi and he was responsible to Delhi office even though, he rendered services outside India. 3 . 1 On perusal of order of Dy. CIT, Circle-46(1), New Delhi (hereinafter called AO), passed on 6th Jan., 2003, it is seen that assessee s status during relevant previous year was Not Ordinarily Resident (NOR). assessee received salary amounting to Rs. 45,2 9 ,212 and bonus amounting to Rs. 9 ,83,246 totalling to Rs. 55,12,458 in relevant previous year. He also was given rent-free accommodation and perquisite value was determined at Rs. 9 ,23,558. assessee spent 124 days outside India. Therefore, in return of income, salary for 124 days, computed on proportionate basis, was excluded from total income. In course of assessment proceedings, it was pointed out that assessee was employed as news correspondent of NHK, Japan Broadcasting Corporation (NHK). As per terms of employment, between assessee and NHK, he was appointed bureau chief of Delhi office w.e.f. 18th July, 1 99 8. His main job was to gather news and reports and convey them to NHK. employment terms also provided that NHK may assign him other duties from time to time. Therefore, it was argued that income of assessee for period of his stay outside India was not taxable in India. However, AO did not accept this position. Her view was that his employment terms obligated him to look after activities assigned to him from his base at Delhi. Therefore, he was responsible to Delhi office even though, he may have rendered services outside India. In another words, his activities were controlled by Delhi office. Accordingly, it was held that salary received by him outside India was also taxable in India. 3.2 Aggrieved by this order, assessee filed appeal before learned CIT(A). It was represented before him that assessee received salary from NHK for his assignment to South Asia region. provision of s. 5(1)(c) of Act were not applicable because his status was NOR and salary was not received from business or profession controlled or set up in India. provision of s. 9 (1)(ii) were also not applicable because overseas employment for gathering news outside India was independent of gathering of news in India. There was no territorial nexus with India when services were rendered outside India. learned CIT(A) considered aforesaid arguments. He pointed out that assignment terms clearly mention that employee may be required by NHK to go on other assignments from time to time to any part of world depending upon exigencies. certificate from NHK showed that assessee visited Nepal, Vietnam, Thailand, Pakistan, Afghanistan, UAE etc., for 124 days for news gathering activities. He also referred to finding of AO that assessee rendered services outside India. It was pointed out by him that although employment contract showed that he was deputed to South Asia region, Station New Delhi, but he continued to work under direct control and supervision of NHK, Japan. In view thereof, he held that assessee did n o t receive salary in India when he worked outside India for 124 days. Accordingly, he directed AO to exclude salary, bonus etc., for this period from total income of assessee. Aggrieved by this order, Revenue is in appeal before us. 4 . 1 While opening case, learned Departmental Representative pointed out that question to be decided is whether provisions contained in s. 9 (1)(ii) or s. 5(1)(b) of Act are applicable in instant case or not. This is mixed question of law and facts. Therefore, it will have to be carefully examined whether decisions rendered in decided cases have facts more or less identical to facts of this case. 4.2 He referred to pp. 12 and 13 of paper book 1 filed by assessee, containing assignment terms, which describe job functions of assessee. These functions are reproduced below for sake of ready reference : "(1) In connection with news gathering of operations of NHK-Japan Broadcasting Corporation s News Bureau Office at New Delhi, employee s duties may include, without limitation, investigating, writing, preparing and reporting of news of Southern Asia, including India and neighbouring countries, for delivery on air, direction and supervision of such news gathering, ensuring effective and efficient operation of Bureau; and such other services as NHK-Japan Broadcasting Corporation may expect from time to time in ordinary course of duties. (2) However, employee may be required by NHK-Japan Broadcasting Corporation to go on other assignments from time to time to any part of world depending on exigencies and that further employee may be reassigned to other News Bureaus of NHK-Japan Broadcasting Corporation at NHK-Japan Broadcasting Corporation s sole discretion. (3) Further employee will be governed by limitations prescribed in authority delegated to him, and should exercise his powers to best of his judgment keeping in mind role of NHK-Japan Broadcasting Corporation as National Public Broadcasting non-profit organization of Japan. (4) employee is also responsible for ensuring compliance with legal requirements on behalf of NHK-Japan Broadcasting Corporation, New Delhi News Bureau Office, and shall act legal representative in all matters on behalf of NHK-Japan Broadcasting Corporation through firm of solicitors appointed for purpose." 4.2A It was pointed out that assessee was appointed Bureau Chief of New Delhi office. Para 1 of job functions shows that his duties included, without limitation, investigating, writing, preparing and reporting of news of Southern Asia including India and neighbouring countries and such other services as NHK may expect from time to time in ordinary course of duties. Para 2 of job functions mentions that assessee may be required by NHK to go on other assignment from time to time to any part of world depending on exigencies (emphasis supplied by learned Departmental Representative) and that further he may be assigned to other news bureaus. On basis of this paragraph, learned Departmental Representative pointed out that main job of assessee was to gather news for NHK, from its office at New Delhi regarding South Asia. Thus, his job functions were not limited to gathering of news in India but to whole of South Asia, which included India and its neighbouring countries. Para 2 contained option available to NHK to assign him from time to time to any other part of world depending on exigencies. His case was that para 2 came into operation when some exigencies arose because of which he may be assigned from New Delhi to any other part of world. In his view, such assignment will also lead to revision of salary and bonus depending upon cost of living in other regions. 4.3 learned Departmental Representative further drew our attention towards heading Taxes in assignment terms in which it is mentioned that employee s emoluments shall be subject to deduction of taxes as per laws applicable in host country (India) and such taxes shall be borne by NHK. On basis of these terms of assignment, contention of learned Departmental Representative was that primary place of duty of assessee was New Delhi and he was governed by fiscal laws of India. Therefore, in absence of any assignment to any other part of world arising on any exigencies, assessee continued to be employed in Delhi office and his visits to other countries were incidental to his employment in New Delhi. 4.4 learned Departmental Representative referred to p. 6 of paper book which furnishes details of visits of assessee outside India. For ready reference, details are reproduced below : Summary of Number of days spent outside India for official purpose Number Travel dates To of days Place from outside India 7- 2-5-2001 4 Nepal 5-2001 17- 2-6-2001 14 Nepal 6-2001 12- Pakistan, 12- 9 -2001 60 11-2001 US,UK Pakistan 30- 23-11-2001 36 and 12-2001 Afghanistan 7- 2-1-2002 4 Nepal 1-2002 7- 28-2-2002 6 Bangkok 3-2002 Total stay 124 outside India Total No. of days for which 241 services rendered in India 4.5 His case was that visits to Nepal between 2nd May, 2001 to 7th May, 2001 and 2nd June, 2001 to 17th June, 2001 were in connection with murder of Nepalese King, which was undertaken with view to examine impact of these momentous events on relation between Nepal and India. assessee also visited Pakistan, US, UK and Afghanistan between 2nd Sept., 2001 to 12th Nov., 2001 and 23rd Nov., 2001 to 30th Dec., 2001. case of learned Departmental Representative was that these visits were undertaken to study impact of 9 th Nov., 2001 events on Muslim world and sizable population of Muslims reside in India. Therefore, after he visited Nepal for four days and Bangkok for six days in January and February, 2002, which was part and parcel of his activity of gathering news in South Asia. Therefore, his contention was that all visits abroad were undertaken in connection with news gathering in India. Coming to issue whether assessee was working for business controlled or profession set up in India, learned Departmental Representative pointed out that there is no evidence on record that his activities were controlled from outside India. only evidence on record is that he was outside India for 124 days. In any case, NHK was registered with Press Bureau of India and activities in South Asia were controlled from Delhi office. 4.6 Coming to legal issues, learned Departmental Representative relied on decision of Hon ble Supreme Court in case of Moosa S. Madha & Azam S. Madha vs. CIT 1 9 73 CTR (SC) 325 : (1 9 73) 8 9 ITR 65 (SC). In that case, assessee was in India for 365 days during four years preceding 1 9 47, and assessee was in India during 1 9 47 for period of two months. Hon ble Court pointed out that onus was on assessee to prove that his visit in 1 9 47 was occasional or casual. That onus was not discharged by mere fact that assessee had no business in India during period of stay of two months. case of learned Departmental Representative on basis of this decision was that assessee was NOR during year, all his activities were in relation to news gathering about South Asia from Delhi office. Therefore, onus was on him to prove that visits outside India were independent of his duties in India. This onus has not been discharged. 4 . 7 learned Departmental Representative referred to provision contained in s. 9 (1)(ii), under which salary, if earned in India, is taxable in India. Explanation below this section clarifies that salary for rest period or leave period which is preceded and succeeded by services rendered in India is also taxable in India. In this connection, learned Departmental Representative relied on decision of Hon ble Uttaranchal High Court in case of Reading & Bates Drilling Co. vs. CIT (2005) 1 99 CTR (Uttaranchal) 66 : (2005) 277 ITR 253 (Uttaranchal). Explanation to s. 9 (1)(ii) of Act was matter of interpretation by Hon ble High Court in that case. facts were that after 35 days of hard work on oil rigs, which was hazardous job, technician had to go back to country of his residence. off period followed on period and both formed part of integral scheme. case of assessee was that salary for off period was paid outside India and therefore, it was not taxable salary for off period was paid outside India and therefore, it was not taxable in India. Tribunal held that off period salary paid was also taxable in India. At p. 256, Hon ble Court pointed out that in certain cases, even if services were rendered outside India, income can still accrue or arise in India. It would depend upon facts of each case. Assuming that there was no rest period as alleged by assessee and that payment was for stand-by, training abroad during this period was connected with work on rigs in India. It made assessee mentally and physically fit. Therefore, it was held that salary for off period was earned in India for services rendered in India under s. 9 (1)(ii). case of learned Departmental Representative was that facts of that case and facts of instant case are in pari materia because assessee had to go abroad to countries neighbouring India, Dubai, UK and USA for gauging impact of certain events such as assassination of Nepalese King and 9 /11 catastrophe on Hindu and Muslim population of India. This was not relocation of assessee to countries for any independent job. Thus, whole of income was taxable in India. 4.8 learned Departmental Representative relied on decision of Hon ble Supreme Court in case of Performing Right Society Ltd. vs. CIT 1 9 76 CTR (SC) 42 9 : (1 9 77) 106 ITR 11 (SC). facts of that case are that under agreement executed in England, assessee company, incorporated i n England, received royalties from Government of India for broadcasting western music from stations of All India Radio. Society received royalties and, after deducting expenses, distributed it to members in proportion to their work publicly performed. It was claimed that royalties received were not taxable in India. Hon ble Court pointed out that royalties were received from Government of India, under agreement for broadcasting western music from stations of All India Radio. Therefore, royalties payable to society constituted its income. question is whether such income accrued or arose in India. case of assessee was that source of income was agreement executed in England. However, Hon ble Court pointed out that that was not material for deciding issue of accrual etc., or reasons that for this purpose source is not material, because s. 5(2) uses expression from whatever source derived . question whether income accrued or arose in India is question of fact, which has to be decided in light of commonsense and plain thinking. authorities below and High Court considered it hard matter of fact that income derived from broadcast of copyright music from stations of All India Radio, arose in India. Putting its seal of approval, Hon ble Court mentioned that in our opinion, this was correct view to take and we find no reason to differ from it. question was also raised whether income can be deemed to have accrued in India, however, Court refused to go to matter for reasons that income, in fact, accrued in India and no question arises whether it should be deemed to accrue or arise in India. case of learned Departmental Representative was that assessee was stationed at New Delhi for getting news from South Asia for NHK. visits in neighbouring and far off countries were for purpose of work assigned to assessee in India and, therefore, income accrued or arose in India as per decision of Performing Right Society Ltd. s case (supra). In alternative, it was pointed out that assessee had not shown any contingency which required relocation of assessee from New Delhi to any other region. There was no evidence on record of relocation. There was no change in salary structure of assessee. Therefore, work performed in neighbouring countries and also far off countries was in connection with his employment in India, and therefore, whole of salary was taxable in India. 5.1 learned counsel of assessee opened her arguments by briefly stating facts of case. It was pointed out that status of assessee in relevant previous year was NOR. In this year, assessee stayed for 124 days outside India. Therefore, salary and bonus for this period, calculated on pro rata basis, was excluded from total salary received by him. assessee was deputed by NHK-Japan to NHK, Bureau office, New Delhi, as its Chief to gather news from South Asia. However, during period of stay outside India, services were not rendered in India. Therefore, salary attributed to services rendered outside India was not considered for tax purposes in India. learned counsel further referred to job functions, finding place in page Nos. 12 and 13 of paper book I, which we have already discussed. She also referred to pp. 68, 6 9 and 70 of paper book which inter alia contain detailed dates on which assessee remained outside India. Page 68 contains certificate from employer, showing that he was paid salary amounting to Japanese Yens 1,44,68,115 and bonus amounting to Japanese Yens 25,58,538. Page 70 contains certificate from employer to effect that due to unfortunate bomb attacks in USA on 11th Sept., 2001, assessee was required to travel to USA and other parts of world for news gathering and reporting in connection with attacks and developments thereafter during period 11th Sept., 2001 to March, 2002. In this connection, we wish to point out here, that assessee visited Pakistan, US, UK from 12th Sept., 2001 to 12th Nov., 2001. However, due to inadequate evidence, number of days for which he stayed in Pakistan is not ascertainable. learned counsel also referred to p. 56 of paper book I, being letter dt. 10th Dec., 2001, addressed to AO. She also referred to p. 60 of paper book, being letter dt. 16th Dec., 2002 addressed to AO in which it was inter alia pointed out that provisions contained in s. 5(1)(c) were not applicable to NOR, activities of employer do not amount to any trade or business activity in India and, therefore, entire salary received in respect of services rendered overseas is not liable to be taxed in India, since assessee was required to render services outside India, as per terms of his assignment. 5.2 Coming to legal issue, learned counsel relied on decision of Hon ble Tribunal, Delhi Benches in case of Dy. CIT vs. Vivek Paul (2004) 82 TTJ (Del) 6 99 : (2004) 2 SOT 7 99 (Del). In that case, assessee, being foreign national and having status of NOR, contended that in terms of his employment he had to undertake journeys outside India and that that part of salary accrued outside India. Therefore, same was not liable to be taxed in India. Hon ble Tribunal held that facts of case were qualitatively different from facts of case of Sedco Forex International Drill Inc. vs. CIT (2005) 1 99 CTR (SC) 320 : (2005) 27 9 ITR 310 (SC). In that case, question was regarding taxability of salaries paid for off period. However, in instant case, assessee has been working outside India and such salaries could not be equated with off period salary. Thus, it was held that salaries earned for services rendered outside India did not accrue to assessee in India. She also pointed out that decision of Hon ble Uttaranchal High Court in aforesaid Sedco Forex International Drilling s case (supra) was reversed by Hon ble Supreme Court of India Sedco Forex International Drilling s case (supra), in which it was inter alia pointed out that new Explanation was not applicable being enacted prospectively and case of assessee was not caught within mischief of existing Explanation. It was also pointed out that interpretation of Hon ble High Court placed on off period salary was incorrect as in that period assessee could be deployed by employer at any other place outside India. 5.3 arguments of learned counsel stopped at this stage for lack of time on 10th Aug., 2006 and hearing was resumed on 18th Aug., 2006. On that day, learned counsel filed synopsis, which included certificate from employer, territorial structure of offices of employer and clarification from employer regarding job functions of assessee. It was requested that this evidence may be admitted, reason being that job function furnished in paper book I, was not happily translated and, therefore, it tended to give distorted picture of assessee s job functions. She also promised to file copy of original Japanese version of assignment terms. This evidence was objected to by learned Departmental Representative and it was pointed out that such evidence was not there before lower authorities or even before Tribunal, till arguments of Revenue were completed. 5.4 We have considered rival submissions. Rule 2 9 of Tribunal Rules, 1 9 63, provides that parties to appeal shall be not entitled to produce additional evidence either oral or documentary before Tribunal. However, if Tribunal requires any document to be produced or witness to be examined or any affidavit to be filed to enable it to pass orders etc., it may, for reasons to be recorded, allow such documents to be produced or witness to be examined or affidavit to be filed. Rule 2 9 places embargo on production of any fresh evidence before Tribunal. However, it empowers Tribunal to call for additional evidence in case such evidence is required by it for deciding case or for substantive justice. We find that assessee had produced requisite evidence before lower authorities which has been placed before us. learned counsel wanted to place Japanese version of terms of assignment on record, but language of Tribunal is English. English version has already been furnished to lower authorities and to us. Therefore, plea of learned counsel that terms of assignment are not happily plea of learned counsel that terms of assignment are not happily translated cannot be taken to be correct. Further, it also cannot be said that certificate of employer enclosed with synopsis is correct translation of terms of assignment. In view thereof, we refuse to admit additional evidence at this stage. 5 . 5 case of learned counsel was that overall control over assessee was in Japan, where NHK was located. As per policies of employer, world was divided into different territories and New Delhi office was placed under NHK, Bangkok Bureau. Therefore, control over assessee was exercised from Japan through Bangkok office. We find no such argument existed before lower authorities and no evidence to that effect was on record of authorities below and Tribunal. It was also case of learned counsel that Delhi office was merely liaison office and not office from where business of NHK was conducted. As per terms of assignment, assessee was sent abroad at instruction of head office in Japan and, therefore, income of assessee relatable to such services was not taxable in India. 6.1 We have considered facts of case and rival submissions. As there is dispute about facts, it will be necessary for us to settle facts. facts are that assessee was employee of NHK, Japan, which had set- up News Bureau office at New Delhi. assessee s duties without limitation, included investigation, writing, preparing and reporting of news of South Asia, including India and neighbouring countries for delivery on air; and such other services as employer may expect from time to time. Since assessee was employee of NHK, Japan, in case of exigencies, his services could be assigned from time to time to any part of world (p. 66, paper book I). Thus, main function was to report news from South Asia. It was also provided that emoluments will be subject to tax, as per laws applicable in host country, India (p. 67 of paper book I). This clause further strengthens view that main functions of assessee was to gather news from South Asia and transmit same to NHK, Japan. As pointed out by learned Departmental Representative, this function will also include gathering of news in neighbouring countries as well as far off countries which will have direct impact on South Asia. Thus, gathering of news in Nepal at time of assassination of Nepalese King and gathering of news in US, UK and Pakistan after 11th Sept., 2001 catastrophe were incidental to main function of gathering news in South Asia, as this events had substantive impact on Hindu and Muslim population respectively of India. assessee was provided rent- free accommodation of which he continued to have possession for whole of year. 6.2 assessee, being NOR, is subject to provision to cls. (a) and (b) of sub-s. (1) of s. 5. Therefore, question is whether whole of income accrued or arose in India or not ? It may be pointed out here, that this section does not lay down any rule regarding situs of accrual of income. This issue was examined by Hon ble Supreme Court in case of Performing Right Society Ltd. (supra) and it was pointed out that situs had to be determined on basis of commonsense and plain thinking. In that case, income of assessee arising out of contract executed outside India was held to accrue in India for reason that its copyright music was broadcast from stations of All India Radio. Looking at terms of assignment, functions performed by assessee in India and outside India were for purpose of gathering news in South Asia and impact of events happening abroad on socio-political scenario in South Asia. assignment terms obviously contained provision for gathering news from neighbouring countries which include Nepal, Pakistan and Afghanistan. events in these countries have direct bearing on India. However, events in USA and some other part of South East Asia also likely to have impact on India. 11th Sept., event had very direct impact on India in terms of its relations with USA in combating terrorism. Therefore, we are of view that travel abroad was inextricably linked in this case with functions of assessee as Chief of News Bureau Office, New Delhi. In context of arguments made by learned Departmental Representative, we are of view that travelling abroad was not for any distinct assignment, separate and apart from his functions as Chief, News Bureau Office, New Delhi. learned CIT(A) mentioned that AO had accepted that assessee rendered services outside India. It is further mentioned that he was deputed to South Asian region and stationed at New Delhi, but he continue to work under direct control and supervision of NHK-Japan, because of which he was required to get periodical news outside India. We are of view that learned CIT(A), failed to appreciate overall context of visits outside India and, thus, came to erroneous conclusion that he was required to gather news outside India periodically de hors his functions as Chief, News Bureau Officer, New Delhi. If we look at whole situation from commonsense and plain thinking, it becomes clear that salary for whole year accrued to him because of his assignment as Chief of News Bureau Office, New Delhi. It would be obvious to any one that NHK, Japan would have offices at least in Bangkok, US and UK and as such there would have been no need for him to travel to these places to gather news independently. purpose obviously was to gather stories which were relevant to and had impact on South Asia region. There is nothing on record that his salary structure was changed when he visited US and UK so as to amount to relocation. assessee continued to occupy rent-free accommodation throughout year. Therefore, we are of considered view that whole of salary, income and bonus accrued to assessee in India. In view thereof, it is not necessary for us to go into issue on deemed accrual under s. 9 , as pointed out by Hon ble Supreme Court in case of Performing Right Society Ltd. (supra). 6.3 In result, order of learned CIT(A) is reversed and order of AO is restored. Thus, appeal of Revenue is allowed. ITA No. 4507/Del/2003 in case of Shri Hamada Haryuki 7. In this appeal, Revenue has taken up two grounds to effect that on facts of case and in law, learned CIT(A), erred (i) in treating status of assessee as non-resident (NR) and (ii) in holding that salary and bonus received by him outside India is not taxable in India. 8 . learned Departmental Representative fairly conceded that correct residential status of assessee is NR and therefore, ground No. 1 of Revenue s appeal does not survive. However, he pointed out that provisions contained in s. 5(2)(b) in case of NR is identical with provision contained in s. 5(1)(b) in case of resident or NOR. It was further pointed out that facts of this case are identical with facts in case of Asstt. CIT vs. Hiromi Hirose (ITA No. 4506/Del/2003). In this connection, he referred to p. 13 of paper book I furnishing job functions etc. In this case, it was pointed out that terms and conditions of job functions and taxes are identical with that case. Reference was also made to p. 76 of paper book I, which furnishes details of stay abroad for 182 days. stay in Nepal was in connection with assassination of King Birendera of Nepal, visit to Pakistan, UAE and Afghanistan were in connection with post 11th Sept., 2001 developments. There were other stays in Vietnam, Thailand and Bangkok for total of 12 days, in connection with ASIAN ministerial meeting, reporting to Bureau Chief of South Asia and meeting with Bureau Chief. His case was that all this travels were in connection with functions that were assigned to him in New Delhi and reporting his work to NHK. As against aforesaid learned counsel pointed out that control over activities of assessee was exercised from Japan. 9 .1 We have considered facts of case and find them to be in pari materia with facts of case of Hiromi Hirose (supra). language of s. 5(2)(b) is also identical with language of s. 5(1)(b) and therefore, issue discussed in that case and conclusions drawn there are equally applicable to this case. Relying on that order, ground No. 2 of appeal of Revenue is allowed. 9 .2 In result, appeal of Revenue is partly allowed. *** ASSISTANT COMMISSIONER OF INCOME TAX v. HIROMI HIROSE