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TMI Blog2014 (6) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. - ITA No. 884/Ahd/2011 - - - Dated:- 30-5-2014 - Sri D. K. Tyagi And Shri Anil Chaturvedi,JJ. For the Petitioner : Sri O. P. Batheja, Sr. D. R. For the Respondent : Sri Nirav M Shah, A.R. ORDER Per : D. K. Tyagi, Judicial Member:- This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Thailand as per Thai Tax Laws I am entitled to relief under Article 15(1) of Double Taxation Avoidance Agreement ( DTAA ). Therefore, as per the detailed legal provisions and facts under the head Notes on DTAA exemption claimed in return submitted during the assessment proceeding and submissions in notes enclosed with the return, copy of which is enclosed herewith. I am not liable to tax on my income in India which is taxed in Thailand. The salary as mentioned by the AO paid in India amounting to Rs. 18,82,764/- is included in return of income submitted in Thailand and Tax has been paid as per Thai Tax Laws. Copy of the Income-Tax certificate proves this beyond doubt. Copies of these documents are enclosed. These documents include copies of income tax return, tax calculation of return filed in Thailand etc. From this it is clear that AO has erred both on facts and in law while coming to the conclusion that your appellant has been paid salary of Rs. 18,82,764/- over and above the income declared in Thailand Tax return. 5. Assessing Officer filed his remand report as under:- (I). In this case, the return of Income was filed on 23.08.2007 by E- filing, vide receipt no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee could have claimed deduction in respect of TDS made on his Income in India while filing his tax return in Thailand if the Income declared in Thailand is inclusive of Income earned in India. Further facts in support of taxability of salary Income of Rs. 18,82,764/- in India are as under: (a) On verification of monthly pay slip issued by the employer i.e. General Electric International Inc., Branch office, Gurgaon, Haryana, it is noticed that the location of place of employment is shown India. (b) Assessee has worked for Indian location as well as he has received salary from Indian Permanent Establishment (PE) i.e. from General Electric International INC,, situated at Gurgaon, Haryana. (c) On verification of bank statement submitted by the assessee, it was found that Salary earned in India was being deposited in his saving bank account No. 379829(1NR) with ABN AMRO Bank, Baroda through cheque, every month by the employer General Electric International INC. i.e. Indian Permanent Establishment (PE) situated at Gurgaon, Haryana. (d) On verification of the copy of form No, 16 submitted by the assessee, further it is noticed that name and address of the employer s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as plant manager in Rayong town and was working under the direct supervision and control of the Thailand company. The assessing officer has relied heavily on the fact that the salary was paid in India, by Indian concern. There is no doubt that under the Income tax act 1961, without considering the DTAA, the salary would have been taxable in India. However the provisions of double taxation avoidance agreement supersede the provisions of the Act unless specifically provided to the contrary. Therefore we need to go through the provisions of article 15 of the DTAA, which deals with employment. The relevant part of article 15 is reproduced below; 1. Subject to the provisions of Articles 16, 17, 18, 19, 20 21, salaries, wages 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 is derived therefore may be taxed in that other Contracting State. 2. Notwithstanding the provisions of paragraph 1, 'remuneration derived by a resident of a Contracting State in respect of an emp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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