TaxTMI 
TaxTMI 
2021 (4) TMI 954
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.... scrutiny under CASS, the assessee was required to furnish certain information and the said information was furnished by the assessee. 3. On verification of Form-16 issued by the assessee's employer i.e., IBM India (P) Ltd for the A.Y 2014-15, the Assessing Officer found that during the relevant A.Y, the gross salary of the assessee was Rs. 31,11,185/-. The Assessing Officer observed that the employer had deducted the tax at source of Rs. 7,76,564/-. Further, on verification of the total income filed by the assessee along with the return of income for the A.Y 2014-15, the Assessing Officer found that the assessee has claimed double taxation relief under section 90 of the I.T. Act and admitted NIL total income but claimed TDS of Rs. 7,66,5....
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..... Though the assessee stated that certain amounts which are received through travel card pertains to allowance received outside India, the same is not acceptable as the receipts received through travel card does not prove to be receipts received outside India as it is mobile card which can be used anywhere. Further, the employer has not confirmed the same either in letter submission or in Form 16 that these receipts paid through travel card. III. Further the assessee has also failed to prove that the receipts which are reflecting in Form 16 are the salary receipts earned outside India, as there is no evidence of the assessee being resident of Belgium. IV. Employer in Form No. 16 has deducted tax at source of Rs. 7,76,564/-on the gross....
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....xable in India or not. b) Further the employer has not filed any revised TDS returns duly reflecting only salary income by discarding allowance received outside India. Hence, it infers that the total receipts reflecting in Form -16 are the receipts received in India only. c) Further the employee has not made any request to employer to revise the Form -16 duly reflecting only taxable income that is received or receivable in India. And also assessee has not made any request to employer to revise the TDS returns even at the time of filing the Return of income, as assessee is very much aware that he is non-resident. Moreover, when the issue is apparent during the scrutiny proceedings, neither the employee nor the employer made any submiss....
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....under Article 15(1) of the India-Austria DTAA only for want of Tax Residence Certificate (TRC) from Austria. The submission of the assessee in this regard was that despite best possible efforts he was not able to procure TRC from country of residence and the situation may be treated as "impossibility of performance". I find merits in the submission of the assessee. Normally it is a herculean task to obtain certificates from alien countries for compliance of domestic statutory obligations. In such circumstances the taxpayer cannot be obligated to do impossible task and penalized for the same. If the assessee provides sufficient circumstantial evidence in such cases, the requirement of section 90(4) ought to be relaxed. Further, it is obvious....
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....the India -Austria DTAA, "salaries, wages and other similar remuneration derived by a resident of a contracting state in respect of an employment shall be taxable only in that state unless the employment is exercised in the other contracting state. If the employment is so exercised, such remuneration as is derived therefore may be taxed in that other state." Further, Article 4(1) the India-Austria DTAA defines the term resident as under: "For the purposes of this convention, the term 'resident of a contracting state' means any person who, under the laws of that state, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, and also includes that state and any ....
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....e of DIT Vs. Prahlad Vijendra Rao (239 CTR 107), on which reliance placed by the assessee, the Hon'ble Karnataka High Court held that under section 15 of the Act even on accrual basis salary income is taxable i.e. it becomes taxable irrespective of the fact whether it is actually received or not; only when services are rendered in India it becomes taxable by implication. However, if services are rendered outside India such income would not be taxable in India. 17. The other objections raised by the Ld. AO that evidence was not produced for receiving the foreign allowance outside India and the bank account of the assessee maintained abroad was not produced is not relevant because the facts of the case establish es that the salary and ....