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TMI Blog2022 (12) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the designation. The continuity of employment from India to USA is evident from the contents of the letter dated 03/06/2015 wherein it is stated that save as otherwise provided in the letter all the terms and conditions of employment in India shall remain unchanged. It does not indicate that there is any need of permanent movement of the assessee to America by vacating the residence in India once for all. It is also not clear whether the assessee moved to America at once with wife and children and severed all his connections with India on his first movement itself. Apart from that the assessee made an election under IRC section 7701(b)(4) to qualify as a resident in the resident of arrival in US, for which one of the conditions is that the assessee shall not meet the SPT in the current year. It is, therefore, clear that the election of the assessee under IRC section 7701(b)(4) shows that in the relevant year, he did not meet the SPT, which is mandatory to be considered as a tax resident in US. It would be worth to note that for calculating the SPT in the context of US Tax resident consideration, it is enough if the assessee stays for 31 days in the current year or 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDICIAL MEMBER Assessee by : Shri S. P. Chidambaram , AR Revenue by : Shri Ajit Kumar Laskar , DR ORDER PER K. NARASIMHA CHARY, JM : Aggrieved by the order dated 22/06/2021 passed by the learned Commissioner of Income Tax (Appeals)-10, Hyderabad ( Learned CIT(A)) , in the case of Jenendra Kumar Jain ( the assessee ) for the assessment year 2016-17, assessee preferred this appeal. 2. It could be seen from the record that there is a delay of 53 days in preferring these appeals and the reason attributed for the delay in filing the appeals to the pandemic. As a matter of fact, though the learned DR does not concede to condone the delay, there is no denial of the fact that the Hon'ble Supreme Court in the Suo Motu proceedings in the case of M.A.No. 21/2022 in M.A.No. 665/2021 in SMW(C) No.3 of 2020 by order dated 10/01/2022 held that in cases, where the limitation would have expired during the period between 15/03/2020 and 28/02/2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01/03/2022, and in the event of actual balance period of limitation remaining with effect from 01/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Assessing Officer, the assessee does not get himself entitled to the status of a resident of USA automatically on his going to USA and its only when his stay exceeded 183 days in 2016 then he qualified himself as a resident alien in USA for 2016, which happened later than 31/3/2016. Learned Assessing Officer referred to the return of income filed by the assessee in USA in the status of a resident alien by opting for election under IRC section 7701(b)(4) and his own choosing to file the return of income in such capacity does not jeopardise the right of India to tax his global income during that assessment year in which he remained a Resident and Ordinarily Resident in India. 7. Learned Assessing Officer rejected the tiebreaker plea under Article 4(2)(a) of DTAA stating that the assessee had a permanent home available in India, and also he had personal relations like spouse, parents, in-laws etc., in India during that period. Learned Assessing Officer also rejected the plea of the assessee that his economic relations were closer to USA on the ground that such as of his job was in India and it has been proved beyond doubt that the assessee s job in USA emanated only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance, driving license, personal belongings such as coral, purchasing of new home, registration of, future retirement plans, retirement accounts etc., in the context of the circumstances in which the assessee moved to USA and reached a conclusion that the centre of his vital interest is in India, though he might have acquired a house on lease in USA and has no house in India. Ultimately she found that in the permanent home contest, legally, the assessee s homeless. She therefore proceeded to the next tiebreaker rule of habitual abode. 10. On the aspect of habitual abode, learned CIT(A) found that the assessee himself had chosen by way of election to be a resident alien and USA and a Resident and Ordinarily Resident in India during the period between 17/10/2015 and 31/3/2016 and the details and the number of days stay given by the assessee himself in USA clearly establish the fact that the habitual abode of the assessee was in India during the financial year 2016-17. By following the default rule, learned CIT(A) considered the nationality of the assessee, which is not in contest and does not necessarily require a territorial relationship and has no actual relationship to residenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his first movement itself. Apart from that the assessee made an election under IRC section 7701(b)(4) to qualify as a resident in the resident of arrival in US, for which one of the conditions is that the assessee shall not meet the SPT in the current year. It is, therefore, clear that the election of the assessee under IRC section 7701(b)(4) shows that in the relevant year, he did not meet the SPT, which is mandatory to be considered as a tax resident in US. 14. It would be worth to note that for calculating the SPT in the context of US Tax resident consideration, it is enough if the assessee stays for 31 days in the current year or 183 days during the period of three years which includes current year and two immediately preceding years counting all the days of the current year, 1/3rd of the days of presence in the first year and 1/6th of the days of presence in the second year before the current year. This calculation does not automatically trigger the US residency for the period between 17/10/2015 and 31/03/2015 and that is the reason why instead of claim the status of resident of USA , the assessee opted to be a resident alien . 15. For the period between 17/10/2015 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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