TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 566
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....07.08.2016 whereby the Appellant restricted its income to Rs.47,82,630/- as earned only in India and claimed that income earned in Singapore was not taxable in India and therefore, he is entitled to get relief u/s. 90 of the Act and consequently, the refund of Rs.22,19,630/-. 2.1 The case of the Appellant was selected under limited scrutiny through CASS, which resulted into issuance of statutory notices to the Appellant. In response, the appellant vide replies/letters dated 31.07.2017 and 14.08.2017 claimed that the salary income from Singapore employment for the period 15th December, 2014 to 31st March, 2015 is declared "Schedule FA-Details of foreign Assets and Income from any source outside India" and excluded from the Income-tax calculation from India standpoint under Article 16(1) of the India-Singapore DTAA ("the Treaty"). 2.2 The appellant further claimed that he was employed in India till November, 2014 and thereafter at Singapore from 15th December, 2014 onwards and also having Singapore Tax Resident Certificate in this regard, which covers from 2014- 2016. The appellant also enclosed the details of taxes paid in Singapore from 1st January to 31st December of the Financi....
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....ent of India for Global Taxation purposes and for the purposes of the provisions of India- Singapore DTAA. Claiming that tie-breaker questionnaire settles the question of appellant's residency in Singapore is fallacious assumption and cannot be accepted. The Appellant was physically present in India 182 days or more in F.Y. 2014- 15 as it is clear from the appellant's submissions that he shifted to Singapore in December, 2014 only, thus, the appellant's residency in India for the relevant F.Y. 2014-14 is not in doubt. From the tie-breaker questionnaire, it is clear that contrary to the appellant's claim, the Appellant is actually the resident of India for Global Taxation purposes and for the purposes of provisions of India-Singapore DTAA. 2.4 The Assessing Officer at the end, by rejecting the revised return of Appellant on the ground that there seems to be no reason to accept the revised return of the appellant, assessed the income of Rs.1,59,36,999/- as declared by the appellant in the original return of income. 3. The appellant, being aggrieved, preferred first appeal before the ld. Commissioner and claimed that he is resident of both India and Singapore, therefore, his residen....
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....ndia only. 3.2 The ld. Commissioner further observed that even if for a moment, the appellant's claim is accepted that permanent home available to him in both the States, then he shall be deemed to be the resident of the State in which his personal and economic relations are closer (centre of vital interests). From the facts, available on record, there is no doubt that even centre of vital interests of the appellant are with India only and not with Singapore. In the tie-breaker questionnaire, mentioned in the assessment order, it has been explained by the appellant that majority of savings, investments and personal bank accounts are in India. Even the test of 'habitual abode' is in favour of India, as the Appellant living in India after completion of foreign assignment as there is no denial of the fact that the appellant is an Indian National. The ld. Commissioner also perused the provisions of Article-4 of OECD Model Convention dealing with the definition of term "resident" and held that it is evident that if the appellant is considered resident of both the countries, even then, his status shall be determined as per OECD Model Convention, which makes it evidently clear that the a....
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....ere with his family and got employment and therefore started earnings there. In support of its claim, the Appellant also produced a Tax Resident Certificate from Singapore Revenue Authorities for the calendar year 2014-15 as required under the Domestic Tax Law as produced before the Assessing Officer during the assessment proceedings as well as before the ld. Commissioner during the appellate proceedings. 6. The ld. DR on the contrary drew our attention to the tiebreaker questionnaire and submitted that in most of the columns which pertains to owning home in the home country, mentions all personal belongings (Automobiles), the country in which the appellant has majority of savings, investments and personal bank accounts and country where casts votes, the Appellant has claimed "India" only which goes to show that the Appellant is to be considered as resident of India for the period under consideration. As the authorities below have clearly held and it is not in controversy that as per section 6(1)(a) of the Act, the Appellant has stayed in India during F.Y. 2014-15 relevant to the assessment year under consideration for 180 days or more therefore, he is liable to be taxed in India ....
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....e Appellant further claimed that as the Appellant qualifies to be the resident of both India and Singapore under Article 4(1) of the Treaty, the residency would need to be determined as per Article 4(2) of the Treaty on the below mentioned criteria which says - 4(1)................ 4(2) Where by reason of the provisions of paragraph 1, an individual is a resident of both Contracting States, then his status shall be determined as follows : (a) he shall be deemed to be a resident of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (centre of vital interests); (b) if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode ; (c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national ; (d) if he is a national of both States or of neither of....
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....asis. It is not in controversy that the Appellant for the period under consideration has shown the income earned in Singapore and paid the taxes in Singapore. Therefore, as per Treaty, he cannot be subjected to tax in India in order to avoid double taxation. 7.9 The Co-ordinate Bench of Tribunal in the case of Raman Chopra vs. DCIT (2016) 69 taxmann.com 452 (Delhi-Trib.) has also dealt with the identical issue wherein, the Appellant had worked outside India for a certain period and therefore, claimed the exclusion of income earned outside India. The Hon'ble coordinate Bench after analysing the factual position of the case held that the Appellant is also the resident of USA for the period 01.04.2010 to 30.06.2010. As the Appellant is considered liable to tax both in India and US as per the tax laws in each jurisdiction, a determination of the residential status as per the India-USA Double Taxation Avoidance Agreement (Treaty) has to be done based on the tie breaker analysis as contained in Article 4(2) of the Treaty. 7.10 It is pertinent to mention herein that both the authorities below have not doubted the tax residency certificate issued by the Singapore authorities for the peri....