TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 761
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....bject, the CIT(A) / AO has erred in not appreciating the fact that the Appellant is admittedly a non-resident for the year under consideration and consequently as per the provisions of section 5 read with sections 9 and 15 of the Act only salary income for services rendered in India should be taxable in India. 1.3 The Appellant submits that the AO be directed to delete the addition so made to the salary income and recompute its total income and tax thereon accordingly. Without prejudice to the above, 2. Re.: Denial of relief u/s. 90 of the Act vis-à-vis non granting the benefit of Article 16(1) of the Double Tax Avoidance Agreement ['DTAA'] between India and USA: 2.1 The CIT(A) has erred in confirming the action of the AO in denying the relief u/s. 90 by not granting the benefit under Article 16(1) of the India - USA DTAA thereby making an addition of Rs. 1,31,04,562/- to the returned income. 2.2 The Appellant submits that considering the facts and circumstances of the case and laws prevailing on the subject, the CIT(A) / AO while denying the benefits under the India - USA DTAA have erred in ignoring the fact that the Appe....
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....on 15 of the Act and that since the salary amount of Rs. 1,31,04,562/- was received in India from the Indian employer, the same is taxable in India as per section 5(2)(a) of the Act. The AO also seen that the Indian company had issued form 16 on the said amount and tax has been deducted at source. The AO observed that since the salary income was received in India, the assessee was not entitled to exemption under the provisions of article 16 of the India-USA treaty. In the instant case, the assessee has filed the tax residency certificate from the Republic of Korea for the year 2018. This has been reiterated in the assessee's submissions dated 8/10/2024. Thus, the claim of the appellant that he is tax resident of USA does not appear to be correct. No TRC has been filed to prove the tax resident status of USA till date. In the submissions dated 8/10/2024, it is further claimed that he is a tax resident of USA under Article 4(1) of the India_US treaty. As no evidence in the form of US TRC has been furnished, whereas the TRC for Korea is available on record, it is not possible to entertain the appellant's contentions in this regard. Further, I have perused the secondment agr....
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....e ITAT held that: 12.8 In terms of section 9(1)(ii) income chargeable under the head "salaries" under section 15 shall be deemed to accrue or arise in India if it is earned in India, ie., if the services under the agreement of employment are or were rendered in India. In the instant case, the employment services were entirely rendered outside India. Hence, the salary is not earned for rendering services in India. Therefore, salary for the entire year is not taxable. In this connection, reliance is placed on the following decisions:- • DIT (International Taxation) v. PrahladVijendra Rao [2011] 198 Taxman 551/10 taxmann.com 238 (Kar.) • Ranjit Kumar Bose v. ITO [1986] 18 ITD 230 (Cal.): • CIT v. Avtar Singh Wadhwan [2001] 247 ITR 260/115 Taxman 536 (Bom.): • Sreenivas Kumar Sistla (AAR No.514 of 2000) 14. The assessee in a gist referred to the following case laws: CASE LAW COMPILATION S. No. Party Citation Page 1. Nanthakumar Murugesan Vs. The Income Tax Officer, IT(TP)A No. No. 12/Chny/2018 1-12 2. Shri Ramesh Kumar AE, Vs. ITO IT (TP) A No. 51/Chny/2018 13-20 3. Bholan....
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.... 17. Explanation 2 to Section 5 clarifies that income will not be treated to be received in India solely on the basis that such income was received or deemed to be received in India. Therefore, it has to be found out where the income to the person concerned had accrued for ascertaining its taxability. There is an alternate and a right view that arises which can be obtained while reading Section 5(2) with Section 9(1)(ii) as Section 5 should be interpreted and effected in reconciliation with other provisions of the act since it starts with an expression 'subject to the provisions of the act. If Section 5(2), as stated in the act, is read with Section 9(1)(ii), the subsequent conclusion flows to the effect that the salary cannot be taxed in India only for the reason that it was received in India but it is said to be taxed at the place of its accrual which would be India if, and only if, the services are rendered in India otherwise in the place where such services were rendered. 18. The Calcutta High Court in the case of Commissioner Of Income-Tax v. Nippon Yusen Kaisha [(1998) 233 ITR 158 Cal] placed its view with respect to interpretation of Section 5(2) of th....
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.... V.S. Sirpurkar, J. - The question referred for our consideration is: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the pension received by the assessee from the Malaysian Government could not be assessed as salary under the Income tax Act, 1961?" 2. The question is referred at the instance of the revenue. The Tribunal in its order relying on articles 18(3) and 18(5) of the Agreement for Avoidance of Double Taxation of income entered into between the Government of India and Government of Malaysia, has held that the pension received was not taxable in India, since it was liable for tax in Malaysia, which was the contracting State. There will be no question of its inviting the taxation in India, which would amount to double taxation. The Tribunal has pointed out that the University of Malaysia is a statutory authority and as such, would fall within the term 'Government' and, therefore, the pension paid by the University of Malaysia, as in the present case, would have to be construed for the purpose of the agreement as a pension received from the Government, which is taxable in terms of article 18(3) in ....