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TMI Blog2023 (8) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 (1) TMI 1816 - ITAT CHENNAI] as well as another decision of SMC bench in Shri M. Ramesh Kumar [ 2017 (11) TMI 2030 - ITAT CHENNAI] which has taken a view against the assessee. However, both these decisions have been rendered by SMC bench and therefore, we are inclined to follow our own decision as cited above which has been rendered by coordinate bench. The Ld. AO is directed to re-compute the income of the assessee. Grounds raised by the assessee stand allowed which render additional grounds of appeal as infructuous. In the result, the appeal of the assessee is allowed in terms of our above order. - Hon ble Shri Mahavir Singh, VP And Hon ble Shri Manoj Kumar Aggarwal, AM For the Appellant : Shri S.P.Chidambaram(Advocate) Ld.AR For the Respondent : Shri Suresh Guduri(JCIT) Ld.Sr. DR ORDER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. The facts as well as issues in aforesaid appeals by different assessee for Assessment Year (AY) 2015-16 are quite identical. It is admitted fact that adjudication in any appeal would apply to the other appeals also. For the purpose of adjudication, IT(TP)A No.51/Chny/2018 in the case of Shri Ramesh Kumar AE has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.6 The learned CIT (A) failed to appreciate the fact that the appellant was working solely for Ford China, was economically associated with Ford China alone during the assignment. 3. The learned CIT (A) erred in concluding without any basis that Ford India will have a direct benefit in the form of service fee from Ford China for the work done by the appellant. Further, the CIT(A) erred in concluding that the above resulted in an employer-employee relationship of the appellant with Ford India. The assessee has also filed additional grounds of appeal to assail charging of interest u/s 234B and 234C. As is evident, the sole grievance of the assessee is that exemption under Article 15(1) of Double Taxation Avoidance Agreement (DTAA) between India and China has been denied to the assessee for salary earned for services rendered in China. 2. The Ld. AR advanced arguments and submitted that the aforesaid income has already been offered to tax in China and taxes has been paid in China by the employer M/s Ford Motor (China) Co. Ltd. The Ld. AR also submitted that the assessee has not claimed any foreign tax credit in either of the jurisdiction. The Ld. Sr. DR, on the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by us in our decision titled as Shri Kanagaraj Shanmugam vs. ITO (ITA No.2936/Chny/2018 dated 07.09.2022) as under: - Our findings and Adjudication 5. From the fact it emerges that the assessee has stayed in India for 63 days during this year and his status, as per law, is non-resident. The assessee has worked in India for 21 days and offered proportionate salary to that extent to tax. For remaining period, the work has been performed in UK though the salary has been received in India from existing employer. It is also a fact on record that this salary, for work performed in UK, has been offered to tax in UK which is evident from Tax Returns filed in UK. The assessee submit the as per Article 16(1) of DTAA, this income would be taxable in UK only. Alternatively, the assessee relies on the provisions of Sec.15 read with Sec.5(2) and Sec.9(1)(ii) which provides for taxability of salary on accrual basis and not on receipt basis. However, Ld. CIT(A) has held that the assessee would not be eligible for the benefit of DTAA since DTAA relief is to be given by resident country which is UK in the present case. 6. We find that an identical issue has been addressed by coord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UK revenue authorities since the employer has undertaken to meet the UK income tax liability arising from employee s earnings in UK. Accordingly, the assessee has claimed refund of 3016. On the basis of the above, it could be seen that separate tax payment has been made by OFSSL to UK revenue authorities to discharge the tax liability of the assessee in that country. 8. The assessee has also placed on record Tax Residency Certificate (Page nos. 192-193 of paper book). As per this certificate, the assessee has claimed relief for foreign earning not taxable in UK for 7952. The same shall be considered by Ld. AO while computing the quantum of income taxable in India as directed by us in preceding para-7. 9. The appeal stands partly allowed in terms of our above order. In the above decision, we have held that salary income as accrued to the assessee for work performed in a foreign jurisdiction would not be taxable in India whereas the salary received for work performed in India would be taxable in India. The benefit of DTAA would be available to the assessee as per the decision of coordinate bench of Chennai Tribunal in Shri Paul Xavier Antonysamy V/s ITO (ITA No.2233/Chny ..... X X X X Extracts X X X X X X X X Extracts X X X X
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