TMI Blog2012 (8) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... e salary of the assessee earned outside India - Reliance on the provisions of Article 15 of India Japan DTAA holding that the provisions of DTAA override the provisions of taxing statute - Held that:- The provisions of Section 90(2) of the Income Tax Act, 1961 are clear that the provisions of the said Act shall be applicable to the extent they are more beneficial to the assessee to whom the relevant DTAA applies - Since in the present case, the provisions of Section 6(6) r.w.s.(5)(1)(c) and Section 9(1)(i) were beneficial to the assessee the same should have been preferred by the authorities over DTAA and the income earned by the assessee outside India during the year under consideration ought to have been held to be not taxable in India as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Appellate Tribunal was right in holding that the salary earned by the Assessee was taxable as salary for the entire year under consideration? 2. The assessee individual was a permanent resident of Japan and during the year the tenure and consideration, he was employed by M/s. Suzuki Motors Corporation (Japan). By virtue of a collaboration agreement between M/s. Suzuki Motors, Japan and M/s. Maruti Udhyog Ltd., India the assessee was deputed to India to offer guidance and technical assistance in accordance with the terms and conditions of that agreement. The salary was paid by M/s. Suzuki Motors Corporation (Japan) to the employee during this period in India and the amount was Rs.5,86,847/-. The assessee was in addition provided acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted accommodation. The reasoning adopted by the ITAT was that in terms of Section 5(1)(c) read with Section 6(6) of the Income Tax Act, 1961 the assessee was a person not ordinarily resident in India and that the salary earned in Japan for employment under Suzuki Motors Corporattion cannot be assessed in his hands in the assessment made in India. The Tribunal also rejected the contention of the revenue based on Article 15 on the ground that on a proper interpretation of Section 90(2) of the Act, there was no question of giving primacy to double taxation treaty. The Tribunal reasoned that since the assessee did not fall within the purview of Income Tax Act, 1961. There was therefore no question of bringing any amount paid to him by his fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es below over DTAA and the income earned by the assessee outside India during the year under consideration ought to have been held to be not taxable in India as per the said provisions. We are, therefore, of the view that the income of the assessee earned in India alone was taxable in his hands in India and the income earned by him outside India was not taxable in India as rightly claimed. In that view of the matter, we reverse the impugned order of learned CIT (A) on this issue and direct the Assessing Officer to delete the addition made on this count. Ground No.2 of the assessee s appeal is accordingly allowed. xxxxx xxxxx xxxxx 14. We have considered the rival submissions and also perused the relevant material on record. It is obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect was made by the assessee before the Assessing Officer as well as before the learned CIT (A) in the statement of facts filed alongwith the appeal. Even the learned DR has not been able to controvert this assertion made by the assessee and there being nothing available on record to show that the amount of daily allowance paid by MUL to SMC for the stay of the assessee in India was actually received by the assessee from SMC, we are of the view that this addition made by the Assessing Officer merely on assumption and surmises was not sustainable. In that view of the matter, we set aside the impugned order of learned CIT (A) on this issue and direct the Assessing Officer to delete the addition made on this count. Ground No.3 of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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