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TMI Blog2023 (1) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... was on rent. Therefore, the permanent home test for the period i.e. 6th December, 2014 to 31st March, 2015 goes in favour of the appellant. Further vital interest of Appellant was also lying in Singapore, because he shifted there with his family and started employment and earnings and savings there from. Accordingly, the Appellant qualified as ultimate Tax Resident of Singapore from 15th December, 2014 onwards as per Article 15(1) of the Treaty. Tie-Breaker Questionnaire, the Appellant specifically mentioned to have apartment on rent in Singapore as well and his wife and two daughters were also living along with him in the country of assignment, i.e., Singapore. The Appellant also held Driving License in both the countries and both the countries have been shown as country of residence on various official Forms and documents for the period from December, 2015 to June, 2016, further paid taxes in Singapore while working there from. Further mentioned that all income which will be paid in future (i.e., bonus for period Jan. 2016 to June 2016) for the work period in Singapore, will be taxable in Singapore. No doubt the tie-breaker questionnaire having importance in determining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod under consideration. On the aforesaid deliberations and analyzations and in the cumulative effects, we are unable to sustain the addition under challenge. Consequently, the addition is deleted and the Assessing Officer is directed to accept the revised return of income filed by the appellant. - ITA No. 4040/Del/2019 - - - Dated:- 28-12-2022 - SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHRI N. K. CHOUDHRY , JUDICIAL MEMBER For the Appellant : Sh. Siddhesh Chaugule , Ld. Adv. Sh. Ajit Jain , Ld. C. A. For the Respondent : Sh. Sanjay Kumar , Ld. Sr. DR ORDER PER N.K. CHOUDHRY, J.M. This appeal has been preferred by the Assessee/Appellant against the order dated 01.02.2019, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)-21, New Delhi (in short Ld. Commissioner ) u/s. 250 of the Income-tax Act, 1961 (in short the Act ) for the assessment year 2015-16. 2. In the instant case, the Appellant, by filing its return of income on dated 29.08.2015, declared a total income of Rs.1,59,36,999/- earned from DBOI Global Services Pvt. Ltd. (in short DBOI) in India during 01.04.2014 to 25.11.2014 and from J.P. Morgan Chase Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of this Agreement, the term resident of a Contracting State means any person who is a resident of a Contracting State in accordance with the taxation laws of that State. 2. Where by reason of the provisions of paragraph 1 , an individual is a resident of both Contracting States, then his status shall be determined as follows : (a) he shall be deemed to be a resident of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (centre of vital interests); (b) if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode ; (c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national ; (d) if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an habitual abode ; (c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national ; (d) if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement. 3.1 The ld. Commissioner after considering the submissions of the appellant as well as the provisions referred to above, held that if any individual is a resident of both the Contract States, then he shall be deemed to be a resident of the State in which he has a permanent home available to him. Above provision is clearly applicable to the appellant, as he has a permanent home available in India, though the same has been given on lease, while leaving to Singapore, but the fact cannot be denied that the ownership rights are with the appellant only, as the property was rented only for a period of 11 months (w.e.f. Dec. 01, 2014 to Oct. 31, 2015 to the tenant Mr. Joy Ghosh) . The appellant took on rent the property situated at Singapore only for a limited period w.e.f. 1st Jan. 2015 till 31st Dec. 2016. Thus, from the above facts, it is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apore DTAA and income earned in Singapore is taxable in India. Thus, the income revised by filing the revised income tax return is not found to be acceptable excluding the income earned in Singapore for the purpose of taxation in India. The Assessing Officer is directed to tax the income as per original return filed by the appellant. 4. The appellant being aggrieved is in appeal before us. 5. The Assessee claimed before us that the appellant relocated to Singapore along with his family members from 6th December, 2014 onwards and became the resident of Singapore for calendar year 2014-15 and therefore, qualified as resident and ordinary resident of India as per section 6(6) of the Act for the said period, i.e. 15.12.2014 to 31.03.2015. Accordingly, he qualified as resident of both India and Singapore, as per Article 4(1) of the India-Singapore DTAA (in short the Treaty ) and thus residency is required to be determined as per Article 4(2) of the Treaty. As the appellant had home available in the country of employment, i.e., Singapore on the start of his employment there, whereas the home in India was no longer available as the same was let out w.e.f. 01.12.2014 onwards, the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be seen as to whether the appellant is liable to be taxed in India qua the income earned during that period in Singapore. 7.2 We have given thoughtful consideration to the rival submissions. The case of the appellant is that the appellant is resident of both India and Singapore and have Tax Residency Certificate from Singapore Revenue Authorities for the calendar Year 2014-15. Also, the appellant is having Singapore Driving License and Overseas Bank Account and house in India was not available to the Appellant during Singapore assignment period, as the same was on rent. Therefore, the permanent home test for the period i.e. 6th December, 2014 to 31st March, 2015 goes in favour of the appellant. Further vital interest of Appellant was also lying in Singapore, because he shifted there with his family and started employment and earnings and savings there from. Accordingly, the Appellant qualified as ultimate Tax Resident of Singapore from 15th December, 2014 onwards as per Article 15(1) of the Treaty, which reads as under: Subject to the provisions of Articles 16, 18, 19, 20 and 21, salaries, wages and other similar remuneration derived by a resident of a Contracting Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects tax liability, which may be less than an entire taxable period. 7.6 We observe that specific provisions made in DTAA having importance and would prevail over the general provisions contained in the Income Tax Act unless and until the same are in derogation of the laws of the land. The Appellant along with his family members shifted to Singapore on 06.12.2014 and thereafter remained there during the period under consideration and earned the income while serving in Singapore itself. 7.7 It is a fact that in the Tie-Breaker Questionnaire, the Appellant specifically mentioned to have apartment on rent in Singapore as well and his wife and two daughters were also living along with him in the country of assignment, i.e., Singapore. The Appellant also held Driving License in both the countries and both the countries have been shown as country of residence on various official Forms and documents for the period from December, 2015 to June, 2016, further paid taxes in Singapore while working there from. Further mentioned that all income which will be paid in future (i.e., bonus for period Jan. 2016 to June 2016) for the work period in Singapore, will be taxable in Singapore. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, whereas it is a fact that the appellant has worked in Singapore during the period under consideration and stayed therein only. Therefore, his personal and economic relations (Centre of vital interests) at that particular time/period cannot be brushed aside, as the Appellant went to Singapore along with his family for earning income and consequently his personal and economic relations remained in Singapore only. 7.11 As per Article 4(2)(b), habitual abode is also available for consideration in deciding the residency of a person. Habitual abode does not mean the place of permanent residence, but in fact it means the place where one normally resides. During the period under consideration, the Appellant resided in Singapore and had habitual abode therein only. Therefore, on this reason as well, the Appellant could be treated as resident of Singapore. Section 90(2) of the Act says clearly 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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