2025 (6) TMI 1307 - AT - Income Tax

Assessee qualifies as non-resident under section 5(2), salary and assignment allowances abroad not taxable in India

Partha Mukherjee Versus I.T.O., Ward - 3 (3), Ayakar Bhawan, Lalkuthi Para

The Tribunal held that the assessee qualified as a non-resident under section 5(2) of the Income Tax Act for AY 2014-15 and AY 2015-16, having minimal ... Taxability of income in India - income received or deemed to have been accrued in India - assessee is a non-resident and the income received by the assessee by way of salary in India as well abroad - HELD THAT:- In this case it is undisputed that assessee has rendered services outside India and there was no iota of evidence brought on record by the AO suggesting that income has accrued or has origin in India. Accordingly, set aside the order of CIT (A) and direct the AO to delete the addition. The case of assessee is squarely covered by the decision of Manab Chandra Ghosh [2024 (11) TMI 1316 - ITAT KOLKATA] wherein held no dispute that the services were rendered in Indonesia and the foreign assignment allowances received by the assessee for services rendered in Indonesia and no evidence suggests that income accrued or arose in India. Income related to services rendered received outside India is not taxable in India. Assessee appeal allowed. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Tribunal in these appeals are:- Whether the assessee qualifies as a non-resident under section 5(2) of the Income Tax Act for the relevant assessment years (AY 2014-15 and AY 2015-16).- Whether the income earned by the assessee, specifically salary income paid in India and assignment allowances paid abroad, is taxable in India given the non-resident status.- Whether the Assessing Officer (AO) was justified in treating the assessee as a resident and making additions to income on that basis.- Whether the Commissioner of Income-tax (Appeals) (CIT(A)) erred in affirming the AO's order without providing cogent reasons for rejecting the assessee's non-resident status and the claim of exemption.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Residential Status of the AssesseeRelevant legal framework and precedents: The residential status of an individual for income tax purposes is governed by section 5(2) of the Income Tax Act, which defines a non-resident as a person who does not satisfy the conditions of physical presence in India during the relevant financial year. The taxability of income for non-residents is restricted to income received or deemed to accrue or arise in India.Court's interpretation and reasoning: The Tribunal examined the facts regarding the assessee's stay in India during the relevant years and found that the assessee had a NIL or minimal stay in India, supported by passport details and other documentary evidence. The Tribunal noted that the assessee was employed by an Indian company but was rendering services abroad during the relevant period.Key evidence and findings: The assessee's return of income was filed declaring non-resident status. The assessee was paid a basic salary in India and assignment allowances abroad. The Tribunal found no evidence brought on record by the AO to prove that the assessee's income accrued or arose in India apart from the salary paid in India. The CIT(A) had recorded a finding that the assessee was non-resident but dismissed the appeal without giving cogent reasons.Application of law to facts: Applying section 5(2) of the Act, the Tribunal concluded that the assessee was a non-resident during the relevant years. Since the income was earned for services rendered outside India, and there was no evidence of income accruing or arising in India, the income was not taxable in India.Treatment of competing arguments: The AO and CIT(A) treated the assessee as resident without sufficient justification. The CIT(A) relied on the AO's order without independent reasoning. The Tribunal rejected this approach and emphasized the absence of any substantive evidence to treat the assessee as resident.Conclusions: The assessee qualifies as a non-resident under section 5(2) of the Act for AY 2014-15 and AY 2015-16. The income earned for services rendered abroad is not taxable in India.Issue 2: Taxability of Salary and Allowances Paid in India and AbroadRelevant legal framework and precedents: For a non-resident, only income received or deemed to have accrued or arisen in India is taxable. The Tribunal relied on a precedent decision of a co-ordinate Bench in Manab Chandra Ghosh Vs. ACIT (ITA No. 40/KOL/2024 for AY 2016-17), which held that salary income relating to services rendered abroad is not taxable in India even if paid by an Indian company, provided the income does not accrue or arise in India.Court's interpretation and reasoning: The Tribunal found that the basic salary paid in India and the assignment allowances paid abroad related to services rendered outside India. The Tribunal noted the absence of any evidence that the income had its origin or accrual in India. The Tribunal also observed that the assessee's failure to produce a Tax Residency Certificate (TRC) before the AO was a procedural lapse but did not affect the substantive right to exemption.Key evidence and findings: The Tribunal considered the salary details, assignment allowances, passport details, and the nature of services rendered abroad. The Tribunal found no dispute that services were rendered outside India, and the income related to such services.Application of law to facts: The Tribunal applied the principle that income earned by a non-resident for services rendered outside India is not taxable in India. The Tribunal directed the AO to delete the addition made on account of salary and allowances and to allow any refund due to the assessee.Treatment of competing arguments: The Revenue contended that the income was taxable as the salary was paid by an Indian company. The Tribunal rejected this, emphasizing the situs of rendering services and the residential status of the assessee as determinative factors for taxability.Conclusions: The salary and assignment allowances paid to the assessee for services rendered abroad are not taxable in India for the relevant years.Issue 3: Validity of CIT(A)'s Order Affirming the AO's AdditionRelevant legal framework and precedents: The appellate authority is required to independently examine the facts and law and provide cogent reasons for confirming or reversing the AO's order.Court's interpretation and reasoning: The Tribunal observed that the CIT(A) recorded the assessee's non-resident status but dismissed the appeal without giving any cogent reasons for differing from the AO's order. This was held to be an error in the appellate process.Key evidence and findings: The appellate record showed a finding of non-residence but no reasoned order rejecting the exemption claim.Application of law to facts: The Tribunal set aside the CIT(A) order for lack of proper reasoning and remanded the matter to the AO with directions to delete the addition.Treatment of competing arguments: The Revenue's reliance on the CIT(A) order was rejected due to the absence of reasoned findings.Conclusions: The CIT(A) order was set aside for failure to provide cogent reasons, and the AO was directed to delete the additions.3. SIGNIFICANT HOLDINGS- 'I find that in this case, the assessee is a non-resident and the income received by the assessee by way of salary in India as well abroad is not to be taxed in India as the assessee was a non-resident u/s 5(2) of the Act and only the income received or deemed to have been accrued is taxable in India in case of non-resident.'- The Tribunal relied on the co-ordinate Bench decision in Manab Chandra Ghosh Vs. ACIT, which held:'We, after hearing the rival submissions of the parties and perusing the material available on record, find that based on the passport details, the assessee was present in India for only 61 days during the financial year 2015-16 which qualifies as a non-resident u/s 5(2) of the Act