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TMI Blog2024 (7) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... exempt from tax in India if the following conditions are satisfied :- (a) If the individual is resident of Korea; and (b) if the employment is outside India. In the instant case, both the conditions had been satisfied and hence in any event, the salary would not be taxable in India in terms of Article 15 (1) of India Korea treaty. Salary offered suo moto by the assessee in the return of income filed in India - Merely because a particular receipt has been erroneously offered to tax by the assessee in the return, it does not mean that the revenue acquires the right to tax the same in the hands of the assessee. The revenue could tax particular receipt only if the provisions of the Act enables it to do so. There is no estoppel against the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2)(1) [hereinafter referred to as [ CIT ] in Appeal dated 29/04/2022 against the order passed by DRP u/s 144C(5) of the Income Tax Act (hereinafter referred to as the Act ) on 07/01/2022 for the Assessment Year 2018-19. 2. Though the assessee has raised several grounds of appeal before us, the only effective issue to be decided in this appeal is as to whether the salary income earned by the assessee in the sum of Rs. 5,11,71,307/-is eligible for exemption in terms of Article 15(1) of India-Korea Double Taxation Avoidance Agreement (DTAA) for the exercise of employment in Korea in the facts and circumstances of the instant case. 3. We have heard the rival submissions and perused the material available on record. The assessee filed his retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were rendered by the assessee outside India. However, in order to ensure withholding tax compliance laid down u/s. 192 of the Act, 3 M India Limited deducted tax at source on the salary paid to the assessee. The entire salary paid was reimbursed to 3M India Limited by 3M Korea. It is not in dispute that assessee had filed his tax returns in Korea duly offering the salary income earned for services rendered in Korea. The tax residency certificate issued by the District Tax Office of Korea is on record. The income tax returns filed by the assesee in Korea are also placed on record. 4. The assessee claimed exemption in terms of Article 15(1) of the Act of India Korea treaty in the sum of Rs. 5,11,71,307/- being the salary accrued outside Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of tax residency certificate issued for the year 2017 and 2018 by the District Tax Office Korea (g) Copy of income tax return of the assessee 5. We find that the Ld. AO had reproduced Article 15 of the India Korea treaty and concluded that assessee is not eligible to claim the relief by applying Article 15(2) (b) and 15 (2) (c). The Ld. AO also observed that since remuneration was always paid by the Indian employer and control and management of the assessee was always based in India. Thus, the salary received by the assessee from Indian employer shall be deemed to accrue or arise in India u/s. 9 (i) (ii) of the Act. We find that the said section has to be read together with the explanation thereon which clearly states that income of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax by the assessee in the return, it does not mean that the revenue acquires the right to tax the same in the hands of the assessee. The revenue could tax particular receipt only if the provisions of the Act enables it to do so. There is no estoppel against the statute. 7. In view of the aforesaid observations, we hold that the salary income earned in India is not taxable under the Act as well as under the India Korea treaty. Accordingly the grounds 2 to 5.1 raised by the assessee are allowed. 8. The ground No.1 raised by the assessee is general in nature and does not require any specific adjudication. 9. The ground No.6 raised by the assessee is seeking concessional rate of tax @ 15% on short term capital gains declared by the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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