K. Shivashankar Bhat, J.—In respect of the assessment year 1982-83, the following question has been referred under section 256(1) of the Income Tax Act, 1961 ("the Act" for short) :

"Whether, on the facts and in the circumstances of the case, the appellate Tribunal is right in law in upholding the orders of the Commissioner of Income Tax (Appeals) who held that the income of Rs. 1,99,970 arising in Malaysia was not liable to be included in the total income of the assessee for the assessment year 1982-83 ?"

2. The assessee is an individual and resident in India. During the previous year relevant to the assessment year 1982-83, which is now under consideration, the assessee had earned income in Malaysia and had claimed it as exempt from tax in India in view of the Double Taxation Avoidance agreement between India and Malaysia. The Income Tax Officer did not accept the contention of the assessee; he included the income earned by the assessee in Malaysia in the total income of the assessee and stated that credit would be given after the assessee had paid tax on this income in Malaysia. The assessee appealed before the Commissioner of Income Tax (Appeals). The Commissioner of I