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TMI Blog2024 (10) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... dent of India. He stays in India with his wife, son and daughter. His other daughter is staying in USA for the purpose of study. The stay of his extended family including parents in USA is not so much relevant to decide whether his personal relationship is close to USA or not. This is also so because, though his parents are USA National, but his brother and his sisters are also staying there. He has a home in India. He also has a home in USA which is earning rental income, purchased by mortgage loan. Regarding his economic interest, he has come back to India for carrying on business in a private limited company which is set up by him and his wife in 2009. The company is involved in distribution of films. Assessee has attended along with his wife five Board meetings of the above company. Therefore, it is important to note that assessee has an active involvement in a running of this company in India. In India he has operative bank accounts with Union Bank of India and ICICI bank. He has also investment in mutual funds. However, operating a bank account and having an investment in mutual funds may not have any vitality of economic relationship because these are passive investments and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Center erred in confirming the order of ACIT. Circle 25(2) dated 09.03.2016 without giving proper of opportunity of being heard and to that extent the order u/s 250 is devoid of natural justice and bed in law. 2. Learned CIT (Appeal), National Faceless Appeal Center erred in confirming the order of ACIT. Circle 25(2) dated 09.03.2016 without considering the detailed submission and supporting documents submitted on 05.04.2023 wide acknowledge number 109558071050423 and the order u/s 250 is bad in law and devoid of natural justice. 3. Learned CIT (Appeal), National Faceless Appeal Center erred in confirming the order of ACIT, Circle 25(2) dated 09.03.2016 and failed to appreciate that the assessee is resident of US in terms of the treaty provisions of India-USA DTAA treaty and therefore any income earned outside of India is not taxable and the said order requires to be set aside 4. Leaned CIT (Appeal), National Faceless Appeal Center erred in confirming the order of ACIT, Circle 25(2) dated 09.03.2016 without appreciating the correct factual position and that the breaker rule for ascertaining the residential status of the assessee is applicable and vital facts are overlooked and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Director and has shareholding of more than 50% in an Indian company, namely, Revel Films Pvt. Ltd. He and his wife each hold 50% of shares in that company. v. assessee has earned capital gains and dividend income from investments made in shares and trading in shares in both India and US. vi. He has also earned rental income from house property in US and bank interest from bank deposits made in US. 8. Based on these facts, Assessing Officer issued a show cause notice that why assessee should not be treated as resident of India for tax purposes and his US income should also not be taxed in India under Section 5 of Indian Income Tax Act, 1961. 9. The assessee filed reference under Section 144A on 18.02.2016 wherein the learned Joint Commissioner after calling report from the Assessing Officer held as under: (i) The assessee is a Managing Director of the Company and is actively participating in the affairs of the company. (ii) Assessee has made investment in mutual funds and also shares in India deriving dividend and capital gains. (iii) Income derived by the assessee from US such as interest dividend, house property and capital gain are passive income for which active involvement i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 was passed determining total income of the assessee at ₹ 43,56,363/-. 13. Assessee aggrieved with the same preferred an appeal before the learned CIT(A). The assessee challenged the determination of residential status and consequently taxability of the above sum. Before the learned CIT(A) assessee furnished copy of US tax residential certificate but did not upload any written submission, therefore, the learned CIT(A) held that as per Section 5 of the Act, if an individual is residing for more than 183 days in India he would be considered as Resident in India and his entire global income would be taxable in India. The assessee would be allowed credit of tax paid in United States in Indian tax Returns. As assessee has not paid any tax in USA, computation of total income made by the learned Assessing Officer was upheld. Consequently, all other income was found to be chargeable to tax in India. Accordingly, appeal of the assessee was dismissed. 14. Aggrieved with that appellate order the assessee is in appeal before us. The assessee furnished a paper book containing 125 pages along with the copy of Article 4 of Indo- US Double taxable avoidable agreement and general informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares] by furnishing its audited account as on 31.03.2013 to show that company has equity share capital of 10000 shares of face value of 10/- each therefore, total equity shares are only ₹ 1.00 lacs. He further stated that assessee has invested in 50% of the share capital by making investment of ₹ 50,000 only. He also referred to the profit and loss of that company for the year ended 31.03.2013 stating that only revenue of the company being interest on income tax refund of ₹ 1,44,350/- against which company has expenditure of ₹ 8,29,000/- including depreciation resulting into net loss of ₹ 5,44,477/-. vii. He, therefore, submitted that his economic social interest are more in United States of America and not in India and, therefore, according to Article 4(2) of DTAA, he should be considered as resident of USA. He also relied upon the decision of the Coordinate Bench in the case of DCIT vs. Kumar Sanjeev Ranjan he referred to the several tests mentioned in that judgment and accordingly, he submitted that if all the tests are applied, center of vital interest of assessee is in USA. viii. He further submitted that if he is considered to be resident of USA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U S national holding U S Passport. 21. Regarding his Economic Interest :- i. Meryl Lynch report, it shown that as at 28, March 2023 assessee has cash balance of $ 57010 and investment in M L Fortress partners $ 268866 and in coast Access LLC of $ 16653. ii. As per summary of UBS Portfolio his investment as at 31/03/2013 is $ 3213383/- This shows that opening portfolio was $3166410 and closing portfolio was $ 32133838, where accretion of dividends and market value changes recorded. iii. As per His India Investments Meryl lynch wealth report shows he has mutual fund investments as at 31/03/2013 of Approximately Rs. 50 lakhs. He has bank account with Union bank of India with bank balance of Rs 212634/- and ICICI bank account with balance of Rs 29,53,232/-, iv. He is director in revel Films Pvt Limited, held Share capital 50% of Rs 50,000 and his wife also holds Rs. 50,000. The company has gross revenue of Rs 1.45 lakhs of Interest on Income tax refund during the year. It has work in progress of films Rs. 6,9152,085/-. Cash and bank balances of Rs 31 lakhs. Unsecured loan from Directors[ he and his wife are directors] of Rs 81256726/-. He and his wife attended 5 Board Meetings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est, He has come back to India for carrying on business in a private limited company which is set up by him and his wife in 2009. The company is involved in distribution of films. It has a work in progress of approximately ₹ 69,152,085/ and long-term unsecured borrowing from the directors of ₹ 81,256,726/ . Assessee holds 50% of the share in the balance 50% of the shares are held by assessee's wife. The loan amount of ₹ 81,256,726/ invested in the above company which is mostly tied up in the work in progress as well as the bank balance, is also financed by the assessee. Assessee has attended along with his wife five Board meetings of the above company. Therefore, it is important to note that assessee has an active involvement in a running of this company in India. In India he has operative bank accounts with Union Bank of India and ICICI bank. He has also investment in mutual funds. However, operating a bank account and having an investment in mutual funds may not have any vitality of economic relationship because these are passive investments and may flow to any country irrespective of the residence if the other laws permit, based on rate of return. 25. From ..... X X X X Extracts X X X X X X X X Extracts X X X X
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