9911796707
TMI Blog2022 (4) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... he 'Act'). The assessee in this appeal has taken the following grounds of appeal: "1. For that on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in upholding the order of the A.O. holding that the appellant assessee qualified as resident but ordinarily resident in India and DTAA with the United States of America was not applicable to the assessee in respect of his global income ignoring the provisions of Section 90 of the Act. 2. a. For that on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in confirming the addition of Rs. 42,58,111/- being salary earned in USA while residing in that country as fully taxable in India though as per Article 4(1) & 4(2) of the DTAA, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2008-09 to 2014-15) immediately preceding the financial year 2015-16, hence, the assessee qualified as resident and ordinarily resident of India during the tax year in question. The Assessing Officer thereafter relied the provisions of section 5 of the Income Tax Act, relevant part of which is reproduced as under: "Scope of total income. 5. (1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes all income from whatever source derived which- (a) is received or is deemed to be received in India in such year by or on behalf of such person ; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year ; or (c) accrues or arises to him ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derived in India was in excess of Rs. 52 lacs during the year in comparison to Rs. 48 lacs earned in USA. On these facts therefore I am of the considered view that, both from the point of view of the period of stay in the Country as well as the relative economic nexus with the Country, the appellant individual was a tax resident of India. In that view of the matter I am of the considered view that both the salary income as well as dividend earned by the appellant individual was taxable in India in terms of Section 5 read with Section 6 of the Income-tax Act, 1961. I therefore agree with the Ld. AO that the Double taxation Avoidance Agreement between India & USA was not applicable in the given facts of the present case. I thus do not find a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax under this Act and under the corresponding law in force in that country or specified territory, as the case may be, and may, by notification in the Official Gazette, make such provisions as may be necessary for implementing the agreement. (2) Where the Central Government has entered into an agreement with the Government of any country outside India or specified territory outside India, as the case may be, under sub-section (1) for granting relief of tax, or as the case may be, avoidance of double taxation, then, in relation to the assessee to whom such agreement applies, the provisions of this Act shall apply to the extent they are more beneficial to that assessee........." A perusal of the above reproduced provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eachers and Research Scholars), 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 the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State. 2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State, if : (a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the relevant taxable year ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of DTAA in respect of income earned by the assessee in other country, with whom the Central Government has entered into a DTAA. In view of this, the impugned order of the ld. CIT(A) on this issue is not sustainable and the same is accordingly set aside. The additions made by the Assessing Officer on this issue are accordingly ordered to be deleted. 3. Ground No.3: Vide Ground No.3, the assessee has agitated confirmation of addition made by the Assessing Officer in respect of dividend income earned by the assessee in USA. The ld. counsel for the assessee has submitted that as per instruction of his client, he does not press Ground no.3. Ground no.3 is, therefore, dismissed as not pressed. In view of the above discussion, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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