TMI Blog2017 (1) TMI 1816X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee not entitled for benefit of under article 15(1) since the assessee is a non resident and as per Article 23 of the DTAA between India and China allows exemption only to a resident of India - HELD THAT:- As decided in Shri Swaminathan Ravichandran [ 2016 (8) TMI 1498 - ITAT CHENNAI] in view of the specific condition under Article 23 of the India- China DTAA, the assessee is not eligible to claim relief under article 15(1) since the assessee is non-resident and as per Article 23 of DTAA between India and China allows exemption only to a resident Indian. Under the above facts and circumstances, the assessee is not eligible to claim exemption under section 5(2) of the Income Tax Act . Thus we are inclined to hold that the assessee is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.5 The CIT(A) has erred in not appreciating the fact that for the assignment period, reporting obligations, work instructions, risk and reward is vested with the host entity and not the legal employer. Hence, the host entity would only be responsible for determining the bonus payable to the Appellant. 3. The assessee raised the ground with regard to disallowance of exemption claimed Article 15(1) of the Double Taxation Avoidance Agreement (DTAA) between India and China. The facts of the issue are that the assessee filed his return of income under section 139(1) of the Income Tax Act, 1961 ( the Act ) on July 29, 2011, returning an income amounting to INR 1,986,648. The assessee excluded salary amounting to INR 6,616,354 (out of his g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the employee and is part of the social obligation and thereby determined by the original employer (home entity). Accordingly, the AO disallowed a portion of the bonus amounting to INR 1,040,052 attributing it as compensation for exercising his employment in the home country. 3.4 The learned AO has also considered a higher amount as refund received and thereby erred in computing interest u/s 244A. Besides, the AO has also levied interest treating the refund as amount paid back in excess and initiated penalty proceedings for concealment of income. 3.5 Being aggrieved by the Assessment Order, the assessee has preferred the appeal before CIT(A). 4. On appeal CIT(A) observed that Article 15 of the Double Taxation Avoidance Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (Karnataka High Court) wherein held that: Having heard the learned advocates appearing for the parties and after perusing the orders passed by the authorities and after having given our anxious consideration to the contentions raised, we are of the considered view that there is no substantial question of law involved in this appeal for being formulated and adjudicated for the following reasons: (a) The revenue does not dispute that assessee had worked as a chief engineer on the board of a ship belonging to his employer M/s. Live Stock Transport Trading Co. , Kuwait and during the relevant period the assessee had stayed outside India for a period of 225 days and the salary that was earned by him was on account of the work dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said principles to the facts of the present case and number of days worked by the assessee outside India as extracted in assessment order when taken into consideration it would emerge that assessee was working outside India for a period of 225 days and the income in question earned by assessee has not accrued in India and is not deemed to have accrued in India. As such the contention of the revenue cannot be accepted. In view of the above discussions the appeal is dismissed as devoid of merits. No order as to costs. 5.1) He submitted that tax credit to be given for the tax paid by the assessee in China as per Article 23 of DTAA. 6. On the other hand, the ld. DR submitted that the assessee not entitled for benefit of under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which owns not less than 10 per cent of the shares of the company paying the dividend, the credit shall take into account the tax paid to India by the company paying the dividend in respect of its income. 2. In India, double taxation shall be eliminated as follows : Where a resident of India derives income which, in accordance with the provisions of this Agreement, may be taxed in China, India shall allow as a deduction from the tax on the income of that resident an amount equal to the income-tax paid in China whether directly or by deduction. Such deduction shall not, however, exceed that part of the income-tax (as computed before the deduction is given) which is attributable, as the case may be, to the income which may be taxed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
