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TMI Blog2013 (11) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the genuineness of claim, a letter to the assesses was issued on 03.12.08 which is reproduced as under: "As per provision of section 5(2) the total income of any previous year of a person who is non-resident include all income from whatever source derived which (a) is received or deemed to be receded in India in such year by or on behalf of such person or (b) Accrues or arise or is deemed to accrue or arise to him in India during such year. Since the income of assessee is taxable on receipt basis, if you have an claim on the basis of DTAA with UK kindly submit your claim. It is seen from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 appear or is not able to present himself before ld. CIT(A) then issue raised before him should be decided on merit. Before us it has been explained that assesses was unable to obtain the documents from UK because the authorities there were busy in Christmas and he has sought an opportunity to present his documents before Ld. CIT(A). Considering this submission, we restore the matter to the Ld. CIT(A) for deciding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Convention, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived there from may be taxed in that other State." The assessee is a resident of UK and UK is the contracting state for tax purpose. The income from salary received in India is clubbed and appropriate tax is paid in U.K. 17. The appellant wishes to furnish all relevant documents contained in the paper book attached here with. 18. It is very clear that (a) The appellant has paid tax on Indian salary twice. (b) The employer has deduced tax on Indian salary component as shown in the TDS certificate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority of Advance Rulings. It is seen that all the above documents are again filed by the assessee before the Appellate Authority and therefore, not helpful for further benefits. The Ld CIT(A), Gandhinagar vide his Order No. CIT(A)GNR/81/Intl.Tax/2008-09 dated 29.12.2009 also dismissed the appeal of the assessee for non compliance of notices issued by the Ld.CIT(A). The Hon'ble ITAT, Ahmedabad, Bench-D Ahmedabod vide Order No.ITA No.2045/Ahd/20lO Dated 22.10.2010 set-aside the order of the CIT(A), directing the assessee to appear before the CIT(A) for seeking date for presentation of documents as stated in the order. The assessee approached to the Ld. CIT(A) on 02.12.2011 and 17.01.2012 and filed documents/explanation which hove been verified and the facts are as under: The assessee failed to file reconciliation of taxes paid on the same income which was offered for taxes in UK and further tax paid on the income declared in India result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal of the assessee by observing as under:- "5.3. I have gone through the facts of the case, the evidences filed, the remand report, the submissions of the assessee and the DTA Agreement between India and UK. The AO's objections are basically that sufficient time was available to the appellant at the time of original assessment, and first appeal proceedings but he failed to submit the necessary evidences/explanations. This objection is of no avail once the case has been set-aside with specific directions by the Hon'ble ITAT. He has also stated that (i) the assessee has failed to file reconciliation that taxes are paid on the same income in UK on which tax was deducted in India and (ii) the no evidence in respect of this as directed by the ITAT has been finished. However, on examination of all the evidences, facts and law, the following pertinent observations are made: (a) The tax return filed in UK clearly shows that the total salary / bonus /perk of the assessee total pounds 99819. The salary computed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 17 (Directors' fee.), I8 (Artistes and athletes), 19 (Governmental remuneration and pensions), 20 (Pensions and annuities), 21 (Students and trainees) and 22 (Teachers) of this Convention, claries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment 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 therefrom may be taxed in that other State." The assessee is a resident of UK and UK is the contracting state for tax purpose. Only if the appellant had exercised his employment in India, this may have been taxed in India as per the DTA agreement. Clearly this is not the case. The income from salary received in India for employment exercised in UK is to be clubbed there and has been done by the assessee. The law is very clear in this respect and the case of the appellant is squarely covered by the advance ruling in the case of BRITISH GAS INDIA P. LTD. (287 ITR 462 AAR). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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