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2022 (4) TMI 632 - AT - Income TaxIncome accrued in India - Period of stay in India - Salary earned by the assessee in the USA from his foreign employer - taxability of global income of any individual resident - resident and ordinarily resident in India - exemption claimed under Article 16(1) of the Double Taxation Avoidance Agreement (DTAA) between India and USA - whether salary income of the assessee was taxable in USA and not in India? - HELD THAT:- Article 16 of the DTAA with USA, the salary income of a resident earned by him in other State shall be taxable in that State if such a resident is present in that other State for a period not exceeding 183 days in the relevant taxable year. The case of the assessee is that his total stay during the year was 165 days only, therefore, the salary income earned by him as per the aforesaid provisions of Article 16 was taxable in USA and not in India. This claim of the assessee has not been rebutted or denied by any of the lower authorities. Both the lower authorities have simply relied upon the provisions of section 5 and section 90 to state that since the assessee was a resident and ordinarily resident in India during the year, therefore, the provisions of DTAA would not apply in the case of the assessee. However, a perusal of section 90 read with Article 16 of the DTAA would show that section 90 did not bar in any manner the operation of the relevant provision of DTAA in respect of income earned by the assessee in other country, with whom the Central Government has entered into a DTAA. In view of this, the impugned order of the ld. CIT(A) on this issue is not sustainable and the same is accordingly set aside. The additions made by the Assessing Officer on this issue are accordingly ordered to be deleted. - Decided in favour of assessee.
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