TaxTMI 
TaxTMI 
2026 (10) TMI 30
X X X X Extracts X X X X
X X X X Extracts X X X X
....empt salary by the assessee, not considering the fact that the salary has been given by the Indian employer of the assessee M/s NBC Fashion Indian Private Limited on which TDS u/s. 192 of the IT Act, 1961 has been deducted and the salary has been received in the Indian resident account of the assessee. 2. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) has erred by not appreciating the fact that the addition is being made under section 5(2)(a) of the IT Act. 1961 which pertains to receipt of income in India while Section 9(1)(i) discusses about accrual of Income in India 3. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law by not appreciating the fact that the assessee has been on deputation/assignment to Vietnam from April 2018 till end of 2023, but he has not explained why the salary could not be received in any account in bank account in Vietnam and not paid by Vietnamese employer. 4. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law by not appreciating the fact that the assessee has been on deputation/assignment to Vietnam from April 2018 till e....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... response. The ld AO issued a show cause notice under Section 143(3) of the Act to justify the claim of exemption under Article 16(1) of the India-Vietnam DTAA read with Section 90 of the Act on salary income received in India from NBC India. The Assessee duly filed the response vide submission dated 17 February 2024 along with the documentary evidence in support of the exemption claimed. 7. The ld AO issued the Draft Assessment Order under Section 144C of the Act dated 24 February 2024 proposing to disallow the exemption of INR 1,88,03,060 claimed by the Assessee under Article 16(1) of the India-Vietnam DTAA read with Section 90 of the Act. The Assessee approached the DRP-2, Delhi within stipulated period of 30 days from the date of issuance of Draft Assessment order. The ld AO passed the Final Assessment Order dated 29 April 2024 under Section 143(3) read with Section 144C(3) of the Act wherein he disallowed the exemption of INR 1,88,03,060 claimed. Aggrieved the Assessee filed an appeal before the CIT(A) who called for a Remand report from the AO and thereafter on the basis of evidences, the Remand Report and the rejoinder filed by the Assessee, allowed the appeal vide order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent of Vietnam during the impugned period, as evidenced by Vietnam Tax Residency Certificate. We further note that as per Article 4(1) of the India-Vietnam DTAA extracted as under qualifies the assessee to be resident of Vietnam during the concerned period.: "For the purpose of this Agreement, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management, place of registration or any other criterion of a similar nature." It is also an undisputed fact that the assessee rendered his services in Vietnam with TJX Vietnam during the period of his assignment in Vietnam as evidenced from the Assignment Agreement along with Extension Agreement and Support Services Agreement between NBC India and TJX Vietnam as well as the Certificate issued by the employer TJX Vietnam. The assessee has paid taxes in Vietnam as evidenced from the proof of payment of taxes in Vietnam. 14. We find that as per Article 16(1) of the India-Vietnam DTAA read with Section 90 of the Act, the Assessee fulfilled the conditions for claiming exemption with respect to the salary income receiv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder consideration was a tax resident of Ireland. In light of above facts and legal position, since the employment was not exercised in India, such income cannot be held to be taxable in India and hence, the addition made by the AO on this issue is hereby directed to be deleted." ii. Hon'ble Delhi Tribunal In the case of Yogesh Kotiyal vs ACIT (ITA No. 391/Del/2023). has held as under {enclosed as Annexure 3): "34. From the concurrent reading of Section 5 dealing with scope of total income, Section 15 dealing with computation of total income under the head salary and charge ability thereof and Section 9 dealing with income arising or accruing in India with reference to the salaries and the services rendered in India, we hold that no taxability arises on the salary/allowances received by the assessee since the assessee is a non-resident and has rendered services outside India. (Para 34, 35, 36) iii. Hon'ble Delhi Tribunal in Amit Laroya vs ACIT (ITA No. 1667/Del/2022: Asstt. Year: 2019-20) (enclosed as Annexure 4) 5. it is very clear that salary payment could be stated to be earned in India only if the corresponding services are rendered i....