TaxTMI 
TaxTMI 
2024 (4) TMI 798
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....ntary evidence, statutory provisions and judicial precedents cited. 2. The learned Assessing Officer and Hon'ble DRP has in the facts and circumstances of the case and in law erred in disallowing the exemption claimed under Article 15(1) of the India -Australia DTAA read with Section 90 of the Act on the following erroneous conclusions/ premises: a. The Assessee exercised his employment in India. b. Employment was based in India throughout the Australia assignment period. c. Control and management of the employment was in India d. Source of salary income was in India e. Salary and expenses during the assignment were borne by Nokia India f. Salary received from Nokia India accrued/ arose in India under section 9 of the Act. g. No concrete evidence was provided to show that the Assessee was Tax Resident of Australia. 3. The learned Assessing Officer and the Hon'ble DRP has in the facts and circumstances of the case and in law erred in applying Article 15(2) of India - Australia DTAA instead of the applicable provisions of Article 15(1) of the DTAA read with Section 90 of the Act. 4. Without prej....
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....is a resident of both Contracting States, then the status of that person shall be determined in accordance with the following rules: (a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person; (b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are closer (centre of vital interests). For the purposes of this paragraph, an individual's citizenship of a Contracting State as well as that person's habitual abode shall be factors in determining the degree of the person's personal and economic relations with that Contracting State. 3. Where, by reason of the provisions of paragraph (I), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated." 7. During F.Y. 2019-20, the Assessee continued to receive salary income in India for exercising employment in A....
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....1) of the India-Australia DTAA. 13. In response to the show-cause notice dated 28 February 2022 issued by the AO, the Assessee had filed Adjournment letter on 3 March 2022 requesting for additional time to provide the information requested by the AO. 14. The Assessee filed the following documents in support of the exemption claimed under Article 15(1) of the India-Australia DTAA as per submission dated 8 and 7 January 2022: * Passport * Australia Tax returns for 2018 and 2019 evidencing residency in the Australia and proof of payment of taxes in Australia 15. The AO has in the Draft Assessment Order under Section 144C of the Act, disallowed the exemption of Rs. 55,37,591/- claimed under Article 15(1) of the India-Australia DTAA read with Section 90 of the Act on the premise that the Assessee had not submitted the Tax Residency Certificate (TRC) issued by Australia tax authorities. Subsequently, the AO has determined the assessed income at Rs. 66,19,861/- as against returned income of Rs. 10,82,270/-. 16. The Assessee filed Objections before the ld. DRP against the Draft Assessment Order on 7 April 2022 under Section 144C(2)(b) of the Act challenging th....
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....employee of Nokia Solutions and Networks India Private Limited (Nokia India) was on an overseas assignment to Australia and was exercising & employment/rendering services in Australia to Nokia Australia from 23 August 2017 to 10 March 2020, post which he was localized in Australia. 3. While on his assignment in Australia with Nokia Australia, the Assessee was physically present/ exercised employment in Australia during the F.Y. 2019-20. 4. While on his overseas assignment, the Assessee continued to receive salary and benefits in India as his payroll remained in India for administrative convenience during his assignment to Australia. 5. The Assessee has claimed exemption of Rs. 55,37,591/- on salary income received in India for the F.Y. 2019-20 for services rendered/ employment exercised in Australia under Article 15(1) of the India-Australia DTAA, read with Section 90 of the Act as he was Resident of Australia under Article 4(1) of the India- Australia DTAA. 6. Section 90(2) of the Act reads as under: "Where the Central Government has entered into an agreement with the Government of any country outside India or specified territory outsid....
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....had any rest period nor leave period which was preceded and succeeded by services rendered outside India, salary received by assessee from an Indian company could not be taxed in India." b) The Delhi Tribunal in the case of Anjali Puri vs. ACIT [2024] 159 Taxmann.com 603 where it was held that "Where assessee was residing and exercising employment in Ireland under complete control of BA PLC, Ireland for impugned assessment year and services were rendered in Ireland, and salary was also borne by BA PLC, Ireland, salary of assessee though derived from BA PLC, India on behalf of BA PLC, Ireland could not be said to be deemed to accrue or arise in India and was duly exempt from tax in India" c) The Ahmedabad Tribunal's judgement in the case of Sunil Chit Ranjan Muncif (2013 58 SOT 356) is squarely applicable in the present case. The assessee was employed by M/s Gemini India, and he was sent to deputation to Australia by Indian employer. It was held as under: "After hearing both the parties and perusing the record, we find that there is no dispute about the fact that assessee is a NRI and the salary income received by him in India for employment exercised in A....
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....s examined with reference to the provisions of Section 5, Section 9, Section 15 of the Income Tax Act, 1961. Section 5 Income Tax Act reads as under: "Scope of total income. 5.(1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes all income from whatever source derived which- (a) is received or is deemed to be received in India in such year by or on behalf of such person or (b) accrues or arises or is deemed to accrue or arise to him in India during such year; or (c) accrues or arises to him outside India during such year: Provided that, in the case of a person not ordinarily resident in India within the meaning of sub-section (6) of section 6, the income which accrues or arises to him outside India shall not be so included unless it is derived from a business controlled in or a profession set up in India. (2) Subject to the provisions of this Act, the total income of any previous year of a person who is a non-resident includes all income from whatever source derived which- (a) is received or is deemed to be received in India in such year by or o....
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....blishing newspapers, magazines or journals, no income shall be deemed to accrue or arise in India to him through or from activities which are confined to the collection of news and views in India for transmission out of India ; (d) in the case of a non-resident, being- (1) an individual who is not a citizen of India ; or (2) a firm which does not have any partner who is a citizen of India or who is resident in India ; or (3) a company which does not have any shareholder who is a citizen of India or who is resident in India, no income shall be deemed to accrue or arise in India to such individual, firm or company through or from operations which are confined to the shooting of any cinematograph film in India; (e) in the case of a foreign company engaged in the business of mining of diamonds, no income shall be deemed to accrue or arise in India to it through or from the activities which are confined to the display of uncut and un-assorted diamond in any special zone notified by the Central Government in the Official Gazette in this behalf. ** ** ** (ii) income which falls under the head "Salaries", if it is earn....