2016 (6) TMI 1174 - AT - Income Tax

Non-resident's salary remittance to India deemed taxable despite foreign earnings

Shri Tapan Krishna Pattanaik Versus D.D.I.T. (TT) -3 (1), Kolkata

The Tribunal upheld the taxability of salary income remitted to India by a non-resident individual, dismissing the assessee's argument that the income was ... Accrual of income - Payment remitted by the foreign company to the NRE account in India - salary income received in India - Addition to the total income on account of the amount remitted to bank account by M/s. BW Fleet Management Ltd., Singapore - CIT(A) held that the salary received by the assessee for the services rendered outside India for which payments had been remitted by the foreign company to the NRE account in India was chargeable to tax in India as his income Held that:- As decided in Shri Tapas Kr. Bandopadhyay-vs- DDIT(IT) [2016 (6) TMI 215 - ITAT KOLKATA ] the income in the present case did not suffer tax in any other jurisdiction nor was it received in any other tax jurisdiction. The receipt in the NRE account in India is the first point of receipt by the assessee and prior to that it cannot be said that the assessee had control over the funds that had deposited in the NRE account from the employer. To sum up, the facts of the instant case directly fits into the facts of the Third Member decision relied upon by the Learned DR 2001 (12) TMI 873 - ITAT MUMBAI and respectfully following the same , we hold that the salary received in India is taxable in India in terms of section 5(2)(a) - Decided against assessee. Issues Involved:1. Taxability of salary income remitted to India by a foreign employer under Section 5(2)(a) of the Income Tax Act, 1961.Issue-wise Detailed Analysis:1. Taxability of Salary Income Remitted to India:The primary issue in this case revolves around the taxability of Rs. 21,56,683/- remitted to the assessee's bank account in India by M/s. BW Fleet Management Ltd., Singapore. The assessee, a Marine Engineer and non-resident in India, contended that the salary was earned and received outside India, and thus, should not be taxable under Section 5(2)(a) of the Income Tax Act, 1961.Assessee's Argument:The assessee argued that the entire remuneration was received in US dollars on board (outside India) and was subsequently remitted to his NRE account in India for family maintenance. The assessee relied on a certificate from M/s. BW Fleet Management Pvt. Ltd., Singapore, confirming the payment of US $ 58,146.00 for services rendered outside India. The assessee contended that the provisions of Section 5(2)(a) were not applicable as the income was not received in India but was merely transferred for convenience.Assessing Officer's (AO) Stand:The AO held that the salary income was taxable in India under Section 5(2)(a) since it was received in India. The AO relied on the Third Member decision of the Mumbai Tribunal in Capt. A.L. Fernandes vs. ITO, where it was held that salary received in India is taxable on a receipt basis.CIT(A)'s Decision:The CIT(A) upheld the AO's decision, emphasizing that the salary remitted to the NRE account in India constituted income received in India. The CIT(A) dismissed the assessee's contention that the payment in foreign currency should not be considered as income received in India. The CIT(A) referenced the Supreme Court's interpretation that income is received when it reaches the assessee's control, which in this case was in India.Tribunal's Analysis:The Tribunal, referencing a similar case (Shri Tapas Kumar Bandopadhyay vs. DDIT), upheld the CIT(A)'s decision. The Tribunal noted that the scheme of the Income Tax Act is such that the charge of tax is independent of territoriality, residency, and currency. The Tribunal found no evidence that the assessee had control over the salary before it was credited to the NRE account in India. The Tribunal emphasized that if the assessee's argument were accepted, it would render Section 5(2)(a) redundant, as it would allow non-residents to avoid taxation on income received in India.The Tribunal also considered the Third Member decision in Capt. A.L. Fernandes vs. ITO, which held that salary received in India is taxable under Section 5(2)(a), regardless of where the services were rendered. The Tribunal found this decision to be binding and applicable to the present case.Conclusion:The Tribunal concluded that the salary income received in the NRE account in India was taxable under Section 5(2)(a) of the Income Tax Act, 1961. The appeal filed by the assessee was dismissed, and the addition of Rs. 21,56,683/- to the assessee's total income was upheld.Final Judgment:The appeal filed by the assessee was dismissed, confirming the addition of Rs. 21,56,683/- as taxable income received in India under Section 5(2)(a) of the Income Tax Act, 1961.