TaxTMI 
TaxTMI 
2026 (8) TMI 1259
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....lso sought professional advice on the legal issues arising from the impugned order, particularly with regard to the taxability of foreign salary income under the provisions of the Income-tax Act, 1961 and the India-Korea DTAA. It has been pleaded that the delay was neither intentional nor deliberate but occurred due to bona fide reasons beyond the control of the assessee. Hence, the ld. DR prayed us to condone the delay and decide the issue on merit of the case. 3. The Ld. DR opposed the petition and submitted that the assessee had failed to file the appeal within the prescribed period. However, he left the issue to the discretion of the Bench. 4. We have carefully considered the rival submissions and perused the petition for condonation of delay along with the affidavit filed by the assessee. We find that the delay of 125 days has been properly explained. The reasons stated by the assessee show that the delay occurred on account of the time taken in collecting documents relating to his foreign employment and tax residency and in obtaining professional advice on the legal issues involved in the appeal. There is nothing on record suggesting that the delay was deliberate, inten....
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.... delayed by 112 days. It was explained that during the relevant period, the assessee was deputed to Samsung Korea. The assessee had claimed exemption in respect of his foreign salary under the India-Korea DTAA. It was further submitted that although the assessee had responded to the initial notice, he could not respond to the subsequent notices due to a medical emergency and was unable to regularly access his e-filing account. As a result, he became aware of the assessment order only at a later stage. Immediately thereafter, the assessee collected the necessary documents and filed the appeal. It was contended that the delay was neither deliberate nor intentional but occurred due to bona fide reasons beyond his control. The assessee, therefore, requested the Ld. CIT(A) to condone the delay in the interest of substantial justice and admit the appeal for disposal on merits. However, the learned CIT(A) did not condone the delay in filing of the appeal. Accordingly, the learned CIT (A) dismissed the assessee's appeal in limine on account of limitation. 6. Being aggrieved by the order of the learned CIT(A) the assessee is in appeal before us. 7. The Ld. AR before us submitted t....
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....proper verification. Accordingly, the learned DR supported the order of the Ld. CIT(A) and prayed for dismissal of the appeal. 9. We have heard the rival contentions of both the parties and perused the materials placed before us. We have also examined the additional documents filed in the paper book, including the Tax Residency Certificates issued by the Korean tax authorities, copies of the Korean income-tax returns, proof of taxes paid in Korea and other supporting documents. 9.1 At the outset, we find that the Ld. CIT(A) dismissed the assessee's appeal solely on the ground that there was a delay of 112 days in filing the appeal and declined to condone the same. The explanation offered by the assessee was that during the relevant period he was under medical emergency and having practical difficulties in regularly accessing the e-filing portal. Hence, he could not file the appeal within the prescribed time. Immediately after becoming aware of the assessment order, he collected the necessary documents and preferred the appeal. In our considered opinion, the explanation furnished by the assessee cannot be said to be fanciful or lacking in bona fides. There is nothing on re....
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....t is earned for services rendered in India. The Explanation to section 9(1)(ii) makes it clear that salary is regarded as earned in India where the services are rendered in India. Therefore, where a non-resident renders services outside India, the salary relatable to such services ordinarily cannot be regarded as income earned in India merely because the salary is paid by an Indian employer or tax has been deducted at source in India. This legal position has consistently been recognised in several judicial precedents dealing with employees sent on foreign deputation. 9.5 Apart from the provisions of the Act, the assessee has also claimed relief under Article 15(1) of the India-Korea DTAA. The material placed before us shows that the assessee claims to have been a tax resident of Korea and has now produced the Tax Residency Certificate, the Korea Tax Return and documents relating to taxes paid in Korea. Under section 90(2) of the Act, where the provisions of the DTAA are more beneficial, the assessee is entitled to claim the benefit thereof. However, section 90(4) requires the assessee to establish his entitlement to treaty benefits by furnishing a valid Tax Residency Certificate....
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....0 The undisputed facts on record show that the assessee was a non-resident during the relevant assessment year. The AO has also accepted this position in the assessment order. Therefore, the assessee falls within the definition of an "eligible assessee" as provided in section 144C(15)(b) of the Act. Section 144C(15)(b)(ii) of the Act was amended by the Finance Act, 2020 with effect from 01.04.2020. After the amendment, the expression "eligible assessee" includes any non-resident not being a company and any foreign company. In the case of such an eligible assessee, where the AO proposes a variation prejudicial to the interest of the assessee, the AO is required, in the first instance, to forward a draft of the proposed assessment order to the assessee. Once an assessee is covered by the said definition and the AO proposes any variation prejudicial to the interest of such assessee, the procedure prescribed u/s 144C of the Act becomes mandatory. 9.11 The scheme of section 144C requires the AO to first pass a draft assessment order and provide an opportunity to the eligible assessee either to accept the proposed variations or to file objections before the Dispute Resolution Panel. I....