TMI Blog2022 (4) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in confirming the addition of ₹ 42,58,111/- being salary earned in USA while residing in that country as fully taxable in India though as per Article 4(1) 4(2) of the DTAA, the assessee qualified as a resident of USA and therefore income earned as salary should have been taxed there. b. For that Ld. CIT(A) ought to have held that even otherwise, the salary amounting to ₹ 42,58, 111/- earned by the assessee in the USA was not taxable in India. 3. For that on the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming an addition of ₹ 4,10,558/-, being dividend earned in the USA, which ought not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho is a 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 (b) accrues or arises or is deemed to accrue or arise to him in India during such year ; or (c) accrues or arises to him outside India during such year......... The Assessing Officer relied upon clause C of section 5 and held that the global income of any individual resident is taxable in accordance with section 5(1) of the Income Tax Act. Hence, the salary received by the assessee from his foreign employer was chargeable to tax in India. The Assessing Officer placing reliance on the provisions of section 90 of the Income Tax Act held that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome as well as dividend earned by the appellant individual was taxable in India in terms of Section 5 read with Section 6 of the Income-tax Act, 1961. I therefore agree with the Ld. AO that the Double taxation Avoidance Agreement between India USA was not applicable in the given facts of the present case. I thus do not find any infirmity whatsoever in the order of the Ld. AO. Being aggrieved by the above order of the ld. CIT(A), the assessee has come in appeal before us. 2.2 We have heard the contentions of the ld. representatives of both the parties and also gone through the records. Before proceeding further, it will be relevant to reproduce the relevant provisions of section 90 of the Act: DOUBLE TAXATION RELIEF [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside India, as the case may be, under sub-section (1) for granting relief of tax, or as the case may be, avoidance of double taxation, then, in relation to the assessee to whom such agreement applies, the provisions of this Act shall apply to the extent they are more beneficial to that assessee......... A perusal of the above reproduced provisions of section 90 of the Act would reveal that the Central Government may enter into an agreement (DTAA) with Government of any country outside India for grant of relief in respect of income tax chargeable under the Act and under the corresponding law in force in that other country. Sub-Section (2) to section 90 provides that where the Central Government has entered into an agreement (DTAA) wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State, if : (a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the relevant taxable year ; (b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State ; and (c) the remuneration is not borne by a permanent establishment or a fixed base or a trade or business which the employer has in the other State. 3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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