TaxTMI 
TaxTMI 
2022 (12) TMI 1352
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....lay of 53 days in preferring these appeals and the reason attributed for the delay in filing the appeals to the pandemic. As a matter of fact, though the learned DR does not concede to condone the delay, there is no denial of the fact that the Hon'ble Supreme Court in the Suo Motu proceedings in the case of M.A.No. 21/2022 in M.A.No. 665/2021 in SMW(C) No.3 of 2020 by order dated 10/01/2022 held that in cases, where the limitation would have expired during the period between 15/03/2020 and 28/02/2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01/03/2022, and in the event of actual balance period of limitation remaining with effect from 01/03/2022 is grea....
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....n that when the assessee was offered a job in India, the letter of appointment dated 6/12/2011 read that he was appointed as a Software Development Engineer-Test (SDE-T) and his position was based in Bangalore; whereas in the letter dated 3/6/2015 where under he was offered a job in the United States, except mentioning that it was an internal transfer at a particular position, all the terms and conditions of employment in India were made applicable to the new position also. According to the learned Assessing Officer, the shift of the assessee to USA was only a temporary one and that is the reason why no sites of employment was mentioned in the letter, because the company treated his position to be based at Bangalore and once the assessee pe....
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....ns, learned Assessing Officer brought the income of salary earned by the assessee in USA to tax in India. 8. Aggrieved by the action of the learned Assessing Officer, assessee preferred appeal before the learned CIT(A) and took the identical plea as was taken before the learned Assessing Officer. Learned CIT(A) considered the submissions of the assessee in the light of the definition of resident as per the OECD and union model convention along with the tiebreaker rule. Learned CIT(A) considered that under Article 4(2) of OECD and the union model convention, where an individual, by reason of the provisions of Article 4 (1) is a resident of both the contracting states, his status shall be determined by applying a series of four tests ending ....
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....onal belongings such as coral, purchasing of new home, registration of, future retirement plans, retirement accounts etc., in the context of the circumstances in which the assessee moved to USA and reached a conclusion that the centre of his vital interest is in India, though he might have acquired a house on lease in USA and has no house in India. Ultimately she found that in the permanent home contest, legally, the assessee's homeless. She therefore proceeded to the next tiebreaker rule of habitual abode. 10. On the aspect of habitual abode, learned CIT(A) found that the assessee himself had chosen by way of election to be a resident alien and USA and a Resident and Ordinarily Resident in India during the period between 17/10/2015 and 31....
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....015 under which he was moved to USA, it was mentioned that he was offered an internal transfer to the position of SDE-T (job level: 5). While clarifying and confirming the new terms of employment with the company, it was specifically stated that except as specifically stated, all the current terms and conditions of employment remain unchanged. It goes without saying that there is no indication as to the permanency of the employment USA. There is nothing before us to show that an internal transfer of an employee of Amazon is equivalent to fresh employment or that under the letter dated 03/06/2015 the assessee was offered a permanent employment straight away in USA, in which case it would have been but natural to mention the place of employme....
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....oes not automatically trigger the US residency for the period between 17/10/2015 and 31/03/2015 and that is the reason why instead of claim the status of 'resident of USA', the assessee opted to be a 'resident alien'. 15. For the period between 17/10/2015 and 31/03/2016, the assessee was not taxed in USA not on the residence basis but on the basis of source. Article 4(1)(a) of DTAA clearly excludes a person who is liable to tax in USA in respect only on income from the sources in USA from the definition of 'resident' who is otherwise liable to be taxed by reason of his domicile, residence, citizenship, place of management, place of incorporation etc. 16. There is nothing before us to contradict the findings of the learned CIT(A) in respec....