AMIT KUMAR,UTTARAKHAND V. OFFICE OF THE INCOME-TAX OFFICER, ITO TDS (INTERNATIONAL TAX), , DEHRADUN

ITA 186/DDN/2025

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The case involves Sh. Amit Kumar, who appealed against the taxability of his salary income derived from services performed in China during the assessment year 2016-17. The income was initially assessed as taxable in India by the Income Tax Officer, which was upheld by the Commissioner of Income Tax (Appeals). The appellant, represented by Ms. Preeti Goel, argued that under the Indo-China DTAA, specifically Article 15(1), his income should only be taxable in China, the 'source State' where the services were actually performed. The Tribunal agreed with the appellant's position, referencing several precedents and the specific terms of the DTAA.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 847449 (ITAT-DEHRADUN)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2026
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Dehradun
• Assessment Year: 2016-2017
• Appeal Filed On: 23-09-2025
• Other Referred Cases: Utanka Roy v. DIT (International Taxation), DIT (Int. Tax) v. Prahlad Vijendra Rao, CIT v. Estienne Andreas & Ors, CIT Vs. Avtar Singh Wadhwan, Arvind Singh Chauhan v. ITO
• Laws Referred To: Income-tax Act, 1961, Indo-China Double Taxation Avoidance Agreement
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHANLAL JOSHI
• Assessee Lawyers: PREETI GOEL
• Keywords: Salary income; TDS; Double taxation relief
• Section: 143(3); 5(2)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL, DEHRADUN “DB” BENCH, DEHRADUN BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER (Through Video Conferencing) ITA No.186/DDN/2025 Assessment Year: 2016-17 Sh. Amit Kumar, 10/6, Kaulagarh Road, Anand Vihar, Dehradun Vs. Income Tax Officer, TDS (Intl. Tax), Dehradun PAN :ABBPK7273K (Appellant) (Respondent) ORDER PER SATBEER SINGH GODARA, JM: This assessee’s appeal for assessment year 2016-17, arises against the Commissioner of Income Tax (Appeals) [in short, the “CIT(A)”], Noida’s -2 DIN and order no. ITBA/APL/S/250/2025- 26/1078855576(1), dated 24.07.2025 involving proceedings under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’). Assessee by Ms. Preeti Goel, Adv. Department by Sh. Mohan Lal Joshi, Sr. DR Date of hearing 14.01.2026 Date of pronouncement 25.03.2026 Printed from counselvise.com ITA No.186/DDN/2025 2 | P a g e Heard both the parties. Case file perused. 2. Coming to the assessee’s sole substantive ground raised herein, we notice during the course of hearing that he is aggrieved against both the learned lower authorities’ action holding his salary amount of Rs.1,32,24,008/-; derived as a non-resident having worked in China with BMW India Financial Services Pvt. Ltd., as assessable in India, in assessment order dated 22.12.2018 as upheld in the lower appellate discussion. 3. Both the learned representatives reiterate their respective stands against and in support of the taxability of the assesseee’s impugned salary income derived from his services performed on an assignment from the Indian employer M/s. BMW Indian Financial Services Pvt. Ltd.; on “secondment” to M/s. BMW Automotive Finance, China in the relevant financial year AY 2015-16. We make it clear that there is no dispute between the parties about the assessee having performed his services in China which is evident from not only his passport but also he has duly placed on record the “Tax Payment Certificate” of China at page 24 of the paper- book. Printed from counselvise.com ITA No.186/DDN/2025 3 | P a g e 4. We find no merit in both the learned lower authorities’ respective findings under challenge. This is for the precise reason that Indo-China Double Taxation Avoidance Agreement “DTAA” in Article 4(1) defines the term “resident of a contracting State” as any person who comes under the laws of that contracting State is liable to be taxed therein by way of his domicile, residence, place of head office etc. It is reiterated that the assessee has duly fulfilled this condition of being a non-resident Indian and tax resident of China by filing his above certificate issued by the Chinese tax authorities. Learned counsel further refers to Article 15(1) of the Indo-China DTAA that salaries, wages and other similar remuneration derived by a resident of a contracting state in respect of an employment shall be taxable only in that contracting state i.e. “source State” unless the employment is exercised in the other contracting state. We further wish to reiterate that the assessee has duly fulfilled his case of being covered under this clinching Article 15(1) of Indo- China DTAA as he has derived the impugned salary in respect of an employment performed in China only. 5. Faced with this situation, we hereby quote Utanka Roy v. DIT (International Taxation) [2017] 82 taxmann.com 113 (Calcutta), Printed from counselvise.com ITA No.186/DDN/2025 4 | P a g e DIT (Int. Tax) v. Prahlad Vijendra Rao, (2011) 10 taxmann.com 238 (Kar), CIT v. Estienne Andreas & Ors (2000) 242 ITR 422 (Bom), CIT Vs. Avtar Singh Wadhwan (2001) 247 ITR 260 (Bom.), and Arvind Singh Chauhan v. ITO [2014] 147 ITD 509 (Agra - Trib.) to conclude that be it as per Indo-China DTAA clauses or going by section 5(2) of the Act as applicable in the relevant previous year, the assessee’s impugned salary derived from the services performed in China in issue are not taxable in India. He succeeds in the instant sole substantive ground in very terms therefore. 6. This assessee’s appeal is allowed. Order pronounced in the open court on 25th March, 2026 Sd/- Sd/- (S. RIFAUR RAHMAN) (SATBEER SINGH GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 25th March, 2026. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi Printed from counselvise.com "