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TMI Blog2020 (5) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... India. Provisions of Section 9(1)(ii) of the Act read with Explanation to clause(a) is very clear in this regard. We find the assessee had claimed exemption under Article 15(1) of India-Australia DTAA for claiming the salary income received for the period 31.08.2014 to 31.03.2015 as not taxable in India. In the instant case as narrated above, there is absolutely no dispute that assessee herein is a resident of Australia and non-resident of India during the year under consideration. Hence, assessee would be entitled to India-Australia Treaty wherein as per Article-15, salary income of resident of Australia is taxable only in Australia. Accordingly we hold that the salary earned by the assessee in respect of services rendered in Aus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of section 15 read with section 5(2) and section 9(1)(ii) of the Act, which clearly provides taxability of salary on the basis of accrual and not on the basis of receipt of salary income, Accordingly, the AO has erred in not appreciating that under provisions of Income-tax Act, 1961, salary received for services rendered in Australia will be taxable in Australia only and hence not taxable in India. 4. The Ld. AO has erred in invoking provision of clause (1) of Article of India-Australia DTAA , which deals in elimination of double taxation in Australia. Since the same is not applicable as Appellant was Resident of Australia which has primary right to tax the income on source basis, 5. The Ld. AO has erred in invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me received by him only in India for the period 01.04.2014 to 30.08.2014. e) The salary income received in Australia was claimed as not taxable in India in view of the fact that services were rendered by the assessee in Australia, but monies for the same were paid by (GEII India) in the bank account of the assessee in India. f) The salaries for the period 31.08.2014 to 31.03.2015 were paid by (GEII India) to the assessee by crediting the bank account of the assessee in India after duly subjecting the same to deduction of tax at source. Hence, the said salary is included in Form No.16 of the assessee. g) The salary paid to the assessee from 31.08.2014 to 31.03.2015 was later reimbursed to (GEII India) by GEII Australia on ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such year by or on behalf of such person ; or 4.1 We find that the provisions of Section 5(2) stipulate that the said provision is subjected to the provisions of this Act. As per the Act, the salary income is chargeable to tax as per Section 15. The regular salary paid to any assessee is chargeable to tax in terms of Section 15(a) of the Act. For the sake of convenience, the said provision is reproduced herein under:- Salaries. 15. The following income shall be chargeable to income-tax under the head Salaries - (a) any salary due from an employer or a former employer to an assessee in the previous year, whether paid or not; 4.2 From the reading of aforesaid provisions of Section 15(a) of the Act, it could be concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le-1 and Article-15 of India- Australia Treaty, it could be safely concluded that the Treaty benefit shall be applicable to persons, who are residents of both India as well as Australia. Hence, the contention of the Revenue that the assessee being a non-resident and hence treaty benefit cannot be extended to the assessee, is incorrect. As per Article-15 of India-Australia Treaty, it has been categorically mentioned that salary income shall be taxable only in Australia, in case of an individual, who is a resident of Australia. In the instant case as narrated above, there is absolutely no dispute that assessee herein is a resident of Australia and non-resident of India during the year under consideration. Hence, assessee woud be entitled to I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed any relief of tax paid on doubly taxed income. Hence, the said decision is factually distinguishable with that of the assessee. 7. We also find that the issue in dispute is also covered in favour of assessee by the Hon ble Karanataka High Court in the case of DIT(International Taxation) Vs. Prahlad Vijendra Rao reported in 198 Taxman 551 (Karnataka); the decision of Hon ble Bombay High in the case of C.I.T Vs. Avtar Singh Wadhwan (2001) 247 ITR 260(Bom); the decision of Hon ble Calcutta High Court in the case of Sumanabandyopadhyay Anr Vs.Deputy Director of Income Tax(International Taxation) in TS-281-H.C- 2017(Cal) and also by CBDT Circular NO.13/2017 dated 11.04.2017. 8. In view of the aforesaid elaborate observations in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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