9911796707
TMI Blog2020 (5) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... the case & in law, ld. AO has erred in determining the assessed income of INR 4,985,450, as against returned income of INR 1,065,111 thereby resulting in non-issuance of refund amounting to INR 1,224,183, claimed in the return of income filed by the appellant. 2. That the IA. AO has erred in ignoring the applicability of Article 15(1) of the India-Australia DTAA by taxing in India the salary income earned in Australia by a Resident of Australia and a Non Resident of India merely because tile same has been received in India 3. That the Ld. AO has erred in ignoring the provisions of section 15 read with section 5(2) and section 9(1)(ii) of the Act, which clearly provides taxability of salary on the basis of accrual and not on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as seconded by (GEII India) on overseas assignment for the purpose of employment with M/s.General Electric International Inc. in Australia (GEII Australia) during the year under consideration. c) The assessee stayed in India for 151 days and left India for employment on 30.08.2014. d) Accordingly, assessee qualified as a Non-Resident of India in accordance of Explantion-1(a) of section 6(1) of the Act. e) The return of income was filed by the assessee in the capacity of non-resident for the assessment year 2014-15 admitting the salary income received by him only in India for the period 01.04.2014 to 30.08.2014. e) The salary income received in Australia was claimed as not taxable in India in view of the fact that services were rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the salary for the relevant period i.e. 31.08.2014 to 31.03.2015 was received by the assessee in India, the lower authorities had brought to tax the said salary in terms of section 5(2)(a) of the Act. For the sake of convenience, the said provision is reproduced herein under:- Scope of total income. 5. (2) Subject to the provisions of this Act, the total income of any previous year of a person who is a non-resident includes all income from whatever source derived which- (a) is received or is deemed to be received in India in such year by or on behalf of such person ; or 4.1 We find that the provisions of Section 5(2) stipulate that the said provision is subjected to the provisions of this Act. As per the Act, the salary income is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State. It was also to be pertinent to reproduce Article-1 of India- Australia Treaty, which is as under:- "Article-1 PERSONAL SCOPE This Agreement shall apply to persons who are residents of one or both of the Contracting States." From the combined reading of Article-1 and Article-15 of India- Australia Treaty, it could be safely concluded that the Treaty benefit shall be applicable to persons, who are residents of both India as well as Australia. Hence, the contention of the Revenue that the assessee being a non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and categorical that the said treaty shall apply to persons who are residents of one or both of the contracting states. Moreover, in the case before Chennai Tribunal relied upon by the Ld. D.R., we find that the Tribunal had only disallowed the treaty relief on ground that the assessee was claiming foreign tax credit relief for taxes paid on doubly taxed income, which is applicable in the case of resident of India. However, in the case of instant assessee before us, the assessee has not claimed any relief of tax paid on doubly taxed income. Hence, the said decision is factually distinguishable with that of the assessee. 7. We also find that the issue in dispute is also covered in favour of assessee by the Hon'ble Karanataka High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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