TMI Blog2013 (11) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... is the revenue's appeal against the order of Ld. CIT(A), Gandhinagar dated 31-07-2012. 2. The revenue has taken six grounds of appeal all relating to the action of Ld. CIT(A) in holding that the salary received by the assessee shall not be taxable in India as employment is exercised in U.K. and the same has been offered for tax in U.K. in pursuance to DTAA. 3. The brief facts of the case are that assessee is employed by M/s Cap Gemini India and he was sent to deputation to England by the Indian employer in 1999. The assessing officer dealt the issue in this appeal as under: "3. The assessee is a NRI and working at London on behalf of the company situated in India. The assessee has also declared income from capital gain income from other sources. The assessee has also declared loss under the head Income House Property being S.O. property. 4. The assessee in the note to statement of income mentioned that, the assessee is a NR1 and working at London on behalf of the company situated in India. The assessee has showed the total Taxable income of Rs 35,03,399/-. However, tax payable worked out to NIL and has claimed refund of Rs.10,93,763/-. In this regard, to verify t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) confirmed the actions of A.O. by observing as under:- "2.2 The reading of the assessment order and the statement of facts together clearly shows that assesses has admitted that it could not file the details of the tax the UK party for whom the claim of the refund had been made. As per the statement of facts, assessee was prevented by certain reasons in furnishing the information before the AO. As per the sequence listed in the preceding paragraph, the assessee has failed to file such statement even at this stage. Consequently, the A.O.'s action in rejecting the appellant's claim is justified and is dismissed." 5. The matter was carried to Hon'ble ITAT and Hon'ble ITAT restored the matter back to the file of Ld. CIT(A) for deciding the issue on merit by observing as under:- "4. We have heard the parties and carefully perused the material on record in our considered view the ld. CIT(A) has not decided the issue on merit and has disposed of the appeal mainly on the ground that assessee did not appear before him and did not file relevant documents as called for by the AO. In our considered view this is not a correct approach. Even where assessee does not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stmas and month closing. 9. The assessing officer passed order rejecting the claim of refund and other deductions. 10. The appellant preferred appeal to the commissioner against the assessment order. 11. The commissioner of income tax (appeals) decided the appeal ex-parte as the notices were not served upon the appellant. At that time only the mother of the appellant was living at the given address. She 85 plus and most likely did not respond promptly to the postman's call. As a result the notice of hearing was returned unserved. 12. The appeal was rejected on the ground that details of tax deduction were not produced before the assessing officer. 13. THE H'BLE Tribunal remanded the case back to the appellate commissioner vide order dated 22-10-2010. The H'ble tribunal directed to produce following documents in support of the appeal; (a) Proof of TVS in India. (b) Proof of payment of taxes in UK (c) Proof as to whether tax is deducted on the same income which is offered for tax in UK and on which further tax has been paid resulting in double taxation of the same income once in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown in the TDS certificate. (c) The employer has added this Indian component in the taxable income of UK and paid tax on the gross amount. (d) As per the provision of DTAA with UK the Indian component of salary cannot be taxed in India. 19. The case of the appellant is squarely covered by the advance ruling in the case of British Gas India P. Ltd. (AAR-725 of 2006). A copy is attached herewith for your reference. 20. The appellant prays that the tax deducted from Indian salary as shown in the return and Form-16 may be refunded." 7. Ld. CIT(A) further sought some information like contract of employment and subsequent appointment/assignment of the assessee which were duly submitted by the assessee. This submissions of the assessee and additional evidence filed before ld. CIT(A) were sent to A.O for his comments. The report of the A.O. has been reproduced by the Ld. CIT(A) in his order which reads as under:- "As requested, comments/objections on the evidences and issues on the subject cited above are as under:- During the course of assessment proceedings, the assessee was required to file proof as to whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 12.2011, the assessee raised contention before the Appellate Authority that the details could not be prepared as consultants in UK were busy with Charismas and month dosing. This contention is not acceptable in view of the facts that the first notice of the appeal hearing was issued on 05.08.2009. The date of finalization of assessment is 18.12.2008. The assessee could have obtained the papers from UK and during the gap period of 8 months filed the same before the Appellate Authority. This was not done as mentioned at Para 2.2 of CIT(A) Order. Even the assessee failed to produce the documents before the Hon'ble ITAT when sufficient time was available with the assessee. It is worthwhile to mention here that the assessment for A. Y. 2005-06 was reopened on the identical issue and while finalizing the assessment, the attention of the assessee was drawn to the remarks of the ITATs order dated 22.10.2010 (para-5). The assessee also failed to furnish the required documents. The assessment was, therefore, finalized on the similar line of verification done in the assessment proceedings for the A.Y. 2006-07. In the light of the above facts, the request of the assessee is not li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit of Tax paid in India. In fact, as per the terms of employment of the assessee, all his UK Tax Liabilities were to be borne by his employer. That is why in the tax return although the total remuneration including is pound 99,819/-; but the gross income has been taken at pound 152,964/-after tax equalization. (c) The TDS in India (Rs 10,93,763) has been deducted from the amount payable to the assessee, which is clear from the Form No 16 read with Form No 12 BA wherein the amount paid by employer on behalf of the employee u/s 192(1A) have been clearly certified as NIL. Whereas the taxes in UK whose credit has been taken in the UK return are not only certified as different by the employer, but clearly are so as evident from P60 and also the fact that this is an amount paid on assessee's behalf by the employer. (d) The appellant has worked in UK. This is clear from the address of the employer in the UK return, and the fact that the entire salary has been offered to tax in UK. The letter of assignment also makes it clear. As noted by the Hon. Tribunal in its order, the fact that the assessee is an NRI undisputed. He has remained in UK for most of the period. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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