2017 (6) TMI 593 - AT - Income Tax

Appeal allowed: Non-resident's Indian income for foreign services not taxable

Shri Shyamal Gopal Chattopadhyay Versus D.D.I.T(I.T) – 2 (1), Kolkata

The Tribunal allowed the appeal, ruling that the remuneration received by the non-resident individual in his NRE account in India for services rendered ... Remuneration received - amount directly remitted from foreign to the NRE account of assessee by the foreign company could be brought to tax - Remittances of salary into NRE Account maintained with an Indian Bank - binding nature of circular - Held that:- There is a distinction between receiving money and transfer of money. - The latter remittance would be outside the purview of provisions of section 5(2)(a) of the Act, as what is remitted is not 'salary income' but a mere transfer of assessee's fund from one bank account to another which does not give rise to 'Income'. It is not clear as to whether the expression 'merely because' used in the Circular refers to the former type of remittance or the latter. To this extent the Circular is vague. In the instant case, the employer has directly credited the salary, for services rendered outside India, into the NRE bank account of the seafarer in India. In our considered opinion, the aforesaid Circular is vague in as much as it does not specify as to whether the Circular covers either of the situations or both the situations contemplated above. Hence we deem it fit to give the benefit of doubt to the assessee by holding that the Circular covers both the situations referred to above. The result of such interpretation of the Circular would be that the provisions of Sec.5(2)(a) of the Act is rendered redundant. Be that as it may, it is well settled that the Circulars issued by CBDT are binding on the revenue authorities. This position has been confirmed by the Hon'ble Apex Court in the case of Commissioner of Customs v. Indian Oil Corporation Ltd (2004 (2) TMI 66 - SUPREME COURT OF INDIA) wherein their Lordships examined the earlier decisions of the Apex Court with regard to binding nature of the Circulars and laid down that when a Circular issued by the Board remains in operation then the revenue is bound by it and cannot be allowed to plead that it is not valid or that it is contrary to the terms of the statute. Accordingly, the grounds raised by the assessee are allowed. Issues Involved:1. Taxability of remuneration received by a non-resident individual directly remitted from a foreign company to an NRE account in India.Issue-wise Detailed Analysis:1. Taxability of Remuneration Received in NRE Account:The primary issue in this case is whether the remuneration of Rs. 33,47,112 received by the assessee, a non-resident Marine Engineer, directly remitted from a foreign company to his NRE account in India, is taxable under the Income Tax Act, 1961.a. Assessee's Argument:The assessee argued that the income was received in foreign currency for services rendered outside India and thus should be exempt under Section 5 of the Act. The assessee maintained that as a non-resident, his salary income received outside India in foreign currency should not be taxable in India. He contended that the point of payment by the foreign company should be considered the point of receipt, and mere remittance to an NRE account in India does not constitute income received in India.b. Assessing Officer's (AO) Argument:The AO contended that under Section 5(2)(a) of the Act, any income received or deemed to be received in India is taxable, regardless of whether it is in Indian or foreign currency. The AO emphasized that the place where the recipient gets control over the money for the first time is crucial. Since the salary was credited to the assessee's NRE account in India, it was considered received in India and thus taxable. The AO relied on the decision in Capt. A.L. Fernandes v. ITO, which held that salary received in India is taxable under Section 5(2)(a).c. CIT(A)'s Decision:The CIT(A) upheld the AO's decision, rejecting the assessee's arguments. The CIT(A) emphasized that the salary credited to the NRE account in India should be considered income received in India and thus taxable.d. Tribunal's Analysis and Decision:The Tribunal examined the arguments and the relevant legal provisions. It noted the CBDT Circular No. 13/2017, which clarified that salary accrued to a non-resident seafarer for services rendered outside India on a foreign-going ship shall not be included in the total income merely because it is credited to an NRE account in India. The Tribunal acknowledged that this Circular binds the revenue authorities and provides that such salary remittances should not be taxed in India.The Tribunal also recognized the potential vagueness in the Circular regarding whether it covers both direct credits by the employer and transfers by the seafarer. However, it chose to interpret the Circular in favor of the assessee, concluding that both scenarios should be covered, thereby rendering the provisions of Section 5(2)(a) redundant in this context.Conclusion:The Tribunal allowed the appeal, holding that the remuneration received by the non-resident assessee in his NRE account in India for services rendered outside India should not be taxed under Section 5(2)(a) of the Act, in line with the CBDT Circular No. 13/2017. The appeal was thus decided in favor of the assessee, and the addition made by the AO was deleted.