2014 (6) TMI 601 - AT - Income Tax

Deletion of salary income received India-Thailand DTAA - residential status of employee - Held that - CIT(A) rightly was of the view that the remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only if the recipient is present in the other State for 3 period or periods not exceeding in the aggregate 183 days in the reliant previous year or tax year concerned, as the case may be, and the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State/ and the remuneration is not borne by an enterprise of the other Contracting State or by 3 permanent establishment or a fixed base which the employer has in the other state. The assessee was a resident of Thailand during the year - He worked physically in Thailand, he s working was utilized by company of that country, the supervision and control over his work was with that company and it can be said without any doubt that he exercised his employment in Thailand - the conditions of article 15are squarely applicable and therefore the salary is taxable in Thailand Following British Gas India Private Limited, In re 2006 (11) TMI 139 - AUTHORITY FOR ADVANCE RULINGS - salary was held not taxable in India - The conditions of article 15(2) too would not be met because the basic condition of exercise of employment in India is not there - He has already paid tax in Thailand - The deduction of TDS in India would not be overriding the provisions of the treaty and is not a material fact - the salary income of the assessee is taxable in Thailand - assessee was a resident of Thailand and worked under the supervision and control of the company based in Thailand - CIT(A) was of the view that the conditions of Article 15(1) of India-Thailand DTAA were squarely applicable and the salary received by the assessee was taxable only in Thailand and not in India tax on which has already been paid in Thailand Decided against Revenue.

Summary

Issues:
Appeal against deletion of addition of salary income by CIT(A) under Article 15(1) of India-Thailand DTAA.

Analysis:
1. Issue of Deletion of Addition of Salary Income:
- The revenue appealed against the deletion of the addition of Rs. 18,82,764/- made by the Assessing Officer on account of salary income received from General Electric International Inc.
- The assessee, a non-resident, claimed exemption under Article 15(1) of the India-Thailand DTAA for the salary received from Thailand and General Electric International Inc.
- The Assessing Officer disallowed the claim based on the salary details and TDS deduction in India, adding it to the assessee's income.
- The assessee contended that he was a resident of Thailand, worked on an international assignment in Thailand, and his income was assessable in Thailand as per Thai Tax Laws.
- The Assessing Officer's remand report highlighted the salary details, TDS deduction, and employment location in India, concluding the salary earned in India was taxable in India.
- The CIT(A) considered the DTAA provisions, emphasizing that the salary was taxable only in Thailand as per Article 15(1) since the assessee was a resident of Thailand, worked there, and paid tax in Thailand.
- The CIT(A) upheld the deletion of the addition, ruling that the salary income was taxable only in Thailand under the DTAA, as the assessee was a resident of Thailand and worked under Thai company's control.
- The Tribunal upheld the CIT(A)'s decision, emphasizing that the salary was taxable in Thailand, where the assessee was a resident and worked, with tax already paid in Thailand.

2. Conclusion:
- The Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s decision that the salary income was taxable only in Thailand under Article 15(1) of the India-Thailand DTAA, as the assessee was a resident of Thailand and worked under the supervision of a Thai company.