TaxTMI 
TaxTMI 
2026 (3) TMI 128
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....ional / Joint Commissioner of Income Tax (Appeals) - 1, Surat ["learned Addl./Joint CIT(A)"], which in turn arose from the intimation issued under section 143(1) of the Act, for the assessment year 2017-18. 2. The revised grounds of appeal filed by the assessee are as follows: - "The below mentioned grounds of appeal are independent of and without prejudice to one another. 1.1 In the facts and circumstances of the case and in law, the learned ADDL/JCIT (A) - 1 Surat herein referred as "the Ld. CIT (A) has erred in upholding the appellant as Resident of India under Article 4(2) of Double Taxation Avoidance Agreement between India and United Kingdom (UK) ("DAA") and including the salary income earned in UK for the period upto 1....
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....ds of appeal, or otherwise, may thus be granted." 3. We have considered the submissions of both sides and perused the material available on record. The brief facts of the case are that the assessee is an individual and for the year under consideration filed his return of income on 05.08.2017, declaring a total income of Rs. 61,75,680/- and claiming a refund of Rs. 6,24,550/-. The return filed by the assessee was processed vide intimation dated 27.03.2019 issued under section 143(1) of the Act, assessing total income of the assessee at Rs. 1,03,54,780/- after making an addition of Rs. 41,79,095/- on account of variance between the income as per the income tax return and the details available in Form 26AS. 4. In its appeal before the le....
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....on, the assessee also furnished a copy of his UK tax return for the UK tax year 2016-17. 5. The learned CIT(A), vide impugned order, disagreed with the submissions of the assessee and dismissed the ground of appeal raised on this issue. The learned CIT(A) held that the assessee is a resident in India and, as per the provisions of Article 16(2) of the India-UK DTAA, the salary can only be taxed in India. The learned CIT(A) also rejected the reliance placed by the assessee on the Tax Residency Certificate of the UK issued up to the period 17.07.2016. The relevant findings of the learned CIT(A), vide impugned order, are reproduced as follows: - "5.3 I have carefully perused the submission of the appellant. The appellant has relied ....
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....hstanding the provisions of paragraph 1 of this Article, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall not be taxed in that other State if: - (a) he is present in the other State for period or periods not exceeding in the aggregate 183 days during the relevant fiscel year, (b) the remuneration 1s paid by, Or don bahal of en employer who is not resident of that other State; and (c) the remuneration is not deductible in computing the profits of an enterprise chargeable id tax in that other State. 5.3.2 Applying the above criterion in the case of the appellant, it is noticed that all three conditions of Article 16(2) are f....
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....ed unless it is derived from a business controlled in or a profession set up in India. As per return of income filed by the appellant for the assessment year 2017- 18, the appellant is resident in India. However, in submission the appellant has claimed that he qualifies as 'resident and not ordinarily resident in India' stating that he was physically present in India for more than 181 days in FY 2016-17 and more than 729 days in previous 7 tax years. In this regard, to ascertain the resident status of the appellant, I have to go through the provisions under section 6 of the Income tax Act. As per Section 6(6)(a) "A person is said to be "not ordinarily resident" in India in any previous year if such person is-(a)an individua....
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....m the addition of Rs. 41,79,095/- to the income of the appellant. Thus, the ground of appeal is dismissed." 6. During the hearing, the learned Authorised Representative ("learned AR"), without prejudice to the submissions made before the learned CIT(A), inter alia, submitted that since the assessee has already paid taxes in UK on the salary (including bonus) with respect to services rendered in UK, the credit of such taxes be granted to the assessee as per the provisions of Article 24 of the India-UK DTAA. Thus, the learned AR submitted that the other issues, i.e., whether the assessee was a resident in the UK during the period from 01.04.2016 to 17.06.2016, and therefore, the salary pertaining to the services rendered during the aforesa....