Ramesh Kumar , CHENNAI V. ITO International Taxation , Tuticorin

ITA 1979/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5832 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 14-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN JCIT D R
• Keywords: Residential status; Salary income; Double taxation relief; Services rendered outside India; Deemed to accrue or arise in india; Additional evidence; Advance ruling
• Section: 5(2); 90

Judgement Text

, A/ SMC , IN THE INCOME TAX APPELLATE TRIBUNAL A/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I.T.A.NO.1979 /MDS./2017 ( ASSESSMENT YEAR : 2014-15 ) SHRI M.RAMESH KUMAR, OLD NO.55A/2, NEW NO.7A/103, INDIRA NAGAR, MAAPILAIURANI, TUTICORIN-628 002. VS. THE INCOME TAX OFFICER, INTERNATIONAL TAXATION WARD, TUTICORIN. PAN AUYPR 6292 F ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MS.PREETI GOEL, ADVOCATE / RESPONDENT BY : MR.B.SAGADEVAN, JCIT, D.R ! ' / DATE OF HEARING : 06.11.2017 #$%& ! ' /DATE OF PRONOUNCEMENT : 16.11.2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-16, CHENN AI DATED 17.05.2017 PERTAINING TO ASSESSMENT YEAR 2014-15. ITA NO.1979/MDS/2017 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS F OR ADJUDICATION. 1. THE HONBLE CIT(A) HAS GROSSLY ERRED IN THE FACT S AND CIRCUMSTANCES OF THE CASE AND IN LAW IN DISALLOWING THE EXEMPTION OF INR 28, 44, 650 CLAIMED BY THE APPELLANT FOR AY 2014-15 IN RESPECT OF THE SERVICES RENDERED IN SWITZERLAND UNDER ARTICLE 15(1) OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA AND SWITZERLAND ( DTAA) READ WITH SECTION 90 OF THE ACT. 2. THE HONBLE CIT(A) HAS GROSSLY ERRED IN THE FACT S AND CIRCUMSTANCES OF THE CASE AND IN LAW IN WRONGLY INVOKING THE PROVISI ONS OF ARTICLE 23(1) OF THE DTAA -TO HOLD THAT ONLY A RESIDENT OF INDIA CAN QUALIFY FOR EXEMPTION UNDER ARTICLE 15(1) OF THE DTAA. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD WORKED WITH ALCATEL LUCENT INDIA LIMITED (ALL.). DURING TH E FINANCIAL YEAR (FY) 2013-14, THE ASSESSEE WAS SECONDED TO SWITZERLAND TO WORK WITH ALCATEL LUCENT SCHWEIZ AG, ZURICH (ALCATEL SWITZERL AND) WITH EFFECT FROM JULY 29, 2013. DURING FY 2013-14, THE ASSESSEE WAS IN INDIA FOR LESS THAN 182 DAYS AND QUALIFIED AS A NON RESID ENT AS PER EXPLANATION (A) TO SECTION 6(1) OF THE ACT. ACCORDI NGLY, THE ASSESSEE HAD ELECTRONICALLY FILED HIS RETURN OF INCOME ON JU LY 31, 2014, ADMITTING AN INCOME OF RS. 11,86,040 AND CLAIMED EX EMPTION OF SALARY UNDER ARTICLE 15(1) OF THE DOUBLE TAXATION A VOIDANCE ITA NO.1979/MDS/2017 3 AGREEMENT (TAX TREATY) BETWEEN INDIA AND SWITZERLAN D AMOUNTING TO RS 28,44,650. THE PARTICULARS OF INCOME AND TAXES D ISCLOSED IN TAX RETURN BY ASSESSEE ARE AS GIVEN BELOW. INCOME AS PER TAX RETURN ` 11,86,040/- TAX AS PER TAX RETURN ` 1,91,384/- TDS AS PER TAX RETURN ` 10,67,415/- TAX REFUND CLAIMED AS PER TAX RETURN ` 8,76,030/- 3.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE CASE WAS SELECTED FOR LIMITED SCRUTINY ASSESSMENT THROUGH IS SUE OF NOTICE UNDER SECTION 143(2) OF THE ACT AND ASSESSMENT ORDER WAS PASSED ON SEPTEMBER 29, 2016 ASSESSING INCOME AT ` 40,30,690/-. THE TAX DEMAND OF ` 10,19,120/- WAS RAISED ON ACCOUNT OF ADDITION OF ` 28,44,650/- MADE TO THE INCOME IN THE ASSESSMENT OR DER. THIS ADDITION WAS MADE ON ACCOUNT OF DISALLOWANCE OF REL IEF, AMOUNTING TO ` 28, 44,650, CLAIMED BY THE ASSESSEE UNDER ARTICLE 15(1) OF THE TAX TREATY. DURING THE CALENDAR YEARS 2013 AND 2014 REL EVANT TO INDIAN FY 2013-14, THE ASSESSEE WAS EXERCISING HIS EMPLOYM ENT IN SWITZERLAND AND HAD FILED HIS TAX RETURNS IN SWITZE RLAND IN THE ITA NO.1979/MDS/2017 4 CAPACITY OF A TAX RESIDENT OF SWITZERLAND AND APPRO PRIATE TAXES HAVE BEEN PAID TO THE REVENUE AUTHORITY OF SWITZERLAND. DURING THE PERIOD OF SECONDMENT THE PAYROLL OF THE ASSESSEE WAS MAIN TAINED WITH ALCATEL INDIA. DURING THE COURSE OF ASSESSMENT PROC EEDINGS, THE ASSESSEE WAS ASKED TO SUBMIT HIS SWITZERLAND TAX R ETURNS AND PROOF OF EMPLOYMENT IN SWITZERLAND. THE ASSESSEE HAD DUL Y SUBMITTED HIS SWITZERLAND TAX RESIDENCY CERTIFICATE, FOR THE YEAR S 2013 AND 2014, CERTIFYING THAT THE ASSESSEE QUALIFIED AS A RESIDE NT OF SWITZERLAND. HE ALSO DULY SUBMITTED THE COPY OF HIS SWITZERLAND TAX RETURNS TO THE AO FOR THE YEAR 2013 AND 2014 TO SUBSTANTIATE HIS EMPL OYMENT IN SWITZERLAND AND THE TAXES HAVE BEEN PAID ON THE SAL ARY INCOME IN SWITZERLAND WHICH IS CLAIMED AS EXEMPT IN INDIA IN ACCORDANCE WITH ARTICLE 15(1) OF INDIA- SWITZERLAND TAX TREATY. HOW EVER, THE LD. ASSESSING OFFICER AFTER EXAMINING THE SUBMISSION O F ASSESSEE, CONSIDERED THAT SINCE THE SALARY IS RECEIVED DIRECT LY TO AN INDIAN BANK ACCOUNT, IT WILL BE SUBJECT TO TAX AS PER INDIAN IN COME TAX LAWS. THE LD. ASSESSING OFFICER OBJECTED THAT ASSESSEES CLA IM UNDER ARTICLE 15(1) OF THE DTAA, WHICH IS NOT IN ORDER SINCE AS P ER ARTICLE 23 OF THE TREATY, ONLY RESIDENTS ARE ALLOWED TO CLAIM RELIEF UNDER THE TREATY. ITA NO.1979/MDS/2017 5 AGGRIEVED BY THE ORDER OF LD. ASSESSING OFFICER, TH E ASSESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). ON APPEAL, LD.CIT (A) FOLLOWING THE DECISION OF CHENNAI TRIBUNAL IN THE CASE OF ITA NO. 299/MDS./2016 DATED 05.08.2016, OBSERVED THAT THE ASSESSEE HAS BE EN PAID SALARY IN INDIA BY AN INDIAN COMPANY, IN INDIAN RUPEES AND IN ASAVINGS BANK MAINTAINED IN INDIA. THEREFORE, THE THE SALARY REC EIVED IN INDIA IS TAXABLE IN ACCORDANCE WITH THE PROVISIONS OF THE SE CTION 5 AND 9 AND 192 OF THE ACT AS IT IS RECEIVED IN INDIA AND TAXAB LE IN INDIA. THE LD.CIT(A) REJECTED THE ASSESSEES CLAIM OF EXEMPTI ON OF SALARY UNDER ARTICLE 15 OF DTAA BETWEEN INDIA AND SWISS CONFEDER ATION. AGAINST THE ORDER OF LD.CIT(A), NOW THE ASSESSEE IS IN AP PEAL BEFORE US. 4. BEFORE US, LD.A.R SUBMITTED THAT SALARY INCOME IS NOT TAXABLE IN INDIA IN RESPECT OF EMPLOYMENT EXERCISED OUTSIDE IN DIA FOR A NON- RESIDENT PER THE PROVISIONS OF THE ACT AND DREW MY ATTENTION TO THE FOLLOWING POINTS. 2.1 AS PER SECTION 6(1) OF THE ACT, IT IS NOT DISP UTED THAT THE APPELLANT QUALIFIED TO BE A NON-RESIDENT IN INDIA FOR THE AY 2014-15. 2.2 THE PROVISIONS OF SECTION 5(2) OF THE ACT DEFIN ES SCOPE OF TOTAL INCOME IN CASE OF NON-RESIDENTS AS UNDER: ITA NO.1979/MDS/2017 6 SUBJECT TO THE PROVISIONS OF THIS ACT, THE TOTAL I NCOME OF ANY PREVIOUS YEAR OF A PERSON WHO IS A NON-RESIDENT INCLUDES ALL INCOME FROM WHATEVER SOURCE DERIVED WHICH (A) IS RECEIVED OR IS DEEMED TO BE RECEIVED IN INDI A IN SUCH YEAR BY OR ON BEHALF OF SUCH PERSON OR (B) ACCRUES OR ARISES OR IS DEEMED TO ACCRUE OR ARI SE TO HIM IN INDIA DURING SUCH YEAR. 2.3 THE EXPRESSION SUBJECT TO USED IN THE OPENING PARA OF THE SUB-SECTION (2) INDICATES THAT THE PROVISIONS OF SECTION 5(2) OF TH E ACT ARE SUBJECT TO OTHER PROVISIONS OF THE ACT AND WOULD HAVE AN OVERRIDING EFFECT. 2.4 IF THE CHARGING PROVISIONS OF THE ACT DO NOT CO NSIDER SUCH RECEIPTS AS TAXABLE, IT SHALL NOT BE TAXABLE UNDER SECTION 5(2) OF THE A CT. 2.5 AS PER SECTION 9(1)(II) OF THE ACT, INCOME UNDE R THE HEAD SALARIES SHALL BE DEEMED TO ACCRUE OR ARISE IN INDIA IF IT IS EARNED IN INDIA. FURTHER, AS PER EXPLANATION TO SECTION 9(1)(II) OF THE ACT, SERVICE S RENDERED IN INDIA ARE REGARDED AS INCOME EARNED IN INDIA. 2.6 IN CIT V NIPPON [1998] 233 ITR 158, THE HONBLE CALCUTTA HC HAS HELD THAT PROVISIONS OF SECTION 5(2) OF THE ACT ARE SUBJECT T O OTHER PROVISIONS OF THE ACT AND IF OTHER PROVISIONS ARE CONTRARY TO PROVISIONS OF S ECTION 5(2) OF THE ACT, THEY WILL HAVE AN OVERRIDING EFFECT ON SECTION 5(2) OF THE AC T. 2.7 RELIANCE IS ALSO PLACED ON THE FOLLOWING DECISI ONS IN THIS REGARD: ARVIND SINGH CHAUHAN V ITO [2014] 42 TAXMANN.COM 285( AGRA) - AN EMPLOYEE HAS TO RENDER THE SERVICES TO GET A RIGHT TO RECEIVE A SALARY AND SITUS OF ACCRUAL OF SALARY INCOME IS THE PLACE WHERE THE SER VICES ARE RENDERED; BOMBAY HIGH COURT RULING IN THE CASE OF AVTAR SIN GH WADHWAN [2001] 247 ITR 260 - SALARY ACCRUED OUTSIDE INDIA WHERE THE SERVIC ES WERE PERFORMED); ITA NO.1979/MDS/2017 7 BOMBAY HIGH COURT IN THE CASE OF CIT VS ESTIENNE ANDREAS AND OTHERS (2000) 242 ITR 422 - IN THE CONTEXT OF INDIA FRANCE DTAA, HELD THAT THE REMUNERATION RECEIVED BY THE EMPLOYEES FOR THE SERVICES RENDERED IN FRANCE COULD NOT BE SUBJECT TO TAX IN INDIA AND HONBLE SUPREME COURT H AS DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE DEPARTMENT AGAINST THE ABOVE JUDGMENT AS REPORTED IN (2000) 241 ITR (ST) 124; KARNATAKA HIGH COURT IN PRAHLAD VIJENDRA RAO 2011 198 TAXMAN 551 - SALARY INCOME DERIVED BY A PERSON WORKING OUTSIDE INDIA FO R 225 DAYS HAS BEEN HELD AS NOT TO HAVE ACCRUED IN INDIA; BANGALORE ITAT IN BHOLANATH PAL VS. ITO (ITA NO.L 0/BANG/2011) - SALARY AMOUNT RECEIVED BY THE APPELLANT DURING STAY OUTSID E INDIA IS NOT TAXABLE AS SALARY IS ACCRUED WHERE EMPLOYMENT SERVICES ARE REN DERED. 2.8 IN THE CASE OF AUTHORITY FOR ADVANCE RULINGS IN BRITISH GAS INDIA PRIVATE LIMITED (2006) 155 TAXMAN 326 (AAR), THE LEARNED AA R WHILE EXAMINING ARTICLE 16(1) OF THE INDO-UK DTAA, OBSERVED THAT SINCE THE NON- RESIDENT INDIVIDUALS WHO ARE SECONDED TO UK ARE DRAWING THEIR SALARY IN RESPECT OF EMPLOYMENT BEING EXERCISED IN THE UK, THEY SHALL BE TAXABLE IN THAT COUNTRY. THUS THE SALARY PAID BY THE APPLICANT SHALL NOT BE TAXABLE IN INDIA AS THE SAME HAS BEEN OFFERED TO TAX IN THE UK IN PURSUANCE OF THE DTAA AND THE APPLICANT I S NOT LIABLE TO DEDUCT TAX AT SOURCE ON SUCH SALARY PAYMENTS. 2.9 REFERENCE IS ALSO MADE TO CIRCULAR 13 OF 2017 H OLDING THAT SALARY ACCRUED TO A NON-RESIDENT SEAFARER FOR SERVICES RENDERED OUTSI DE INDIA ON A FOREIGN GOING SHIP SHALL NOT BE TAXED IN INDIA MERELY BECAUSE THE AMOUNT HAS BEEN CREDITED TO NRE ACCOUNT MAINTAINED WITH AN INDIAN BANK BY THE S EA-FARER. 2.10 THE HONBLE CALCUTTA HIGH COURT HAS HELD IN UT ANKA ROY V. DIRECTOR OF INCOME-TAX (2017 82 TAXMAN.COM 113) THAT EXPLANAT ION 2 OF SECTION 5(2) CLARIFIES THAT INCOME WILL NOT BE TREATED TO BE REC EIVED IN INDIA SOLELY ON THE BASIS THAT SUCH INCOME WAS RECEIVED OR DEEMED TO BE RECEI VED IN / INDIA. IT HAS TO BE FOUND OUT WHERE THE INCOME TO THE PERSON CONCERNED HAD ACCRUED. FOR THE I ITA NO.1979/MDS/2017 8 PURPOSE OF FINDING OUT THE PLACE OF ACCRUAL OF INCO ME, THE PLACE WHERE THE SERVICES HAVE BEEN RENDERED BECOME MATERIAL. 2.11 THE KOLKATA TRIBUNAL DECISION IN THE CASE OF T APAS KUMAR BANDHOPHDYAY V. DDIT [2016 159 LTD 309 HAS BEEN WRONGLY APPLIED TO THE FACTS OF THE PRESENT CASE BY THE LEARNED AC AND CIT(A) AS IN THAT CASE T HE ASSESSEE WAS NOT RESIDENT OF ANY COUNTRY WHILE IN THE PRESENT CASE, THE APPELLANT IS TAX RESIDENT OF SWITZERLAND AND HAS PAID THE APPLICABLE TAXES IN SW ITZERLAND (PAGES 62-63 OF THE PAPER-BOOK WHERE THE DECISION HAS BEEN DISTINGUISHE D BEFORE THE LEARNED AO) 2.12 THE DECISION CITED BY THE HONBLE BENCH DURING THE COURSE OF THE PRESENT HEARING IS ALSO RELEVANT IN THIS CONTEXT IE THE JUR ISDICTIONAL HONBLE MADRAS HIGH COURT HAS HELD IN CIT V. FAIZAN SHOES (P) LTD [2014 48 TAXMAN.COM 48) THAT ASSESSEE WAS NOT LIABLE TO DEDUCT TAX AT SOURCE WHE N THE NONRESIDENT AGENT PROVIDES SERVICES OUTSIDE INDIA ON PAYMENT OF COMMI SSION. 2.13 IT IS PERTINENT TO REITERATE THE FACT THAT THE APPELLANT WAS EXERCISING EMPLOYMENT IN SWITZERIAII AND NOT IN INDIA. FOR ADM INISTRATIVE CONVENIENCE, THE APPELLANT CONTINUED TO RECEIVE IS SALARY IN INDIA. THE LABOUR OF SERVICE WHICH ENTITLED THE APPELLANT TO THE CASH COMPENSATION WAS RENDERED OUTSIDE INDIA. THE APPELLANT REITERATES BEFORE YOUR HONOURS THAT ONLY IIE PAYER IS ALCATEL INDIA, BUT, SERVICES WERE RENDERED FOR ALCATEL SWITZERLAND IN S WITZERLAND. AS THE SERVICES ARE BEING RENDERED OUTSIDE INDIA, THE SALARY INCOME DOES NOT ACCRUE IN INJIA AND HENCE IS NOT CHARGEABLE TO TAX IN INDIA (THE RELEVA NT SUBMISSIONS IN THIS REGARD RE EXTRACTED AT PAGES 59-62 OF THE PAPER-BOOK). {IT IS PERTINENT TO NOTE THAT THE LEARNED AO AND HONBLE CIT(A) HAVE ACCEPTED THE ABO VE FACTS AND NOT DISPUTED THE SAME OR CALLED IOR ADDITIONAL EVIDENCE IN THIS REGARD}. 2.14 THE COMMENTARY FROM KLAUS VOGEL IS ALSO BEING RELIED UPON IN THIS REGARD. (PAGES 60-61 OF E PAPER-BOOK.) ITA NO.1979/MDS/2017 9 3. TREATY RELIEF / EXEMPTION CLAIMED UNDER ARTICLE 15( 1) OF THE INDIA- SWITZERLAND DOUBLE TAXATION AVOIDANCE AGREEMENT (THE DTAA) 3.1 AS PER PROVISIONS OF SECTION 90(2) OF THE ACT, THE APPELLANT IS ENTITLED TO INVOKE THE PROVISIONS OF INDIAN TAX LAWS OR THAT OF THE DTAA, WHICHEVER IS BENEFICIAL TO HIM. 3.2 ARTICLE I OF THE DTAA PROVIDES THAT PROVISIONS OF THE DTAA SHALL APPLY TO PERSONS WHO ARE RESIDENTS OF ONE OR BOTH THE COUNTR IES. THE APPELLANT QUALIFIES TO BE A NON RESIDENT OF INDIA FOR T E AY 2014-15 AND A TAX RESIDENT OF SWITZERLAND FOR THE YEARS 2013 AND 2014 (I.E., CORRESPONDING IN DIAN AY 2014-15) AND IS ACCORDINGLY ENTITLED TO THE BENEFICIAL PROVISIONS O F THE DTAA. 3.3 AS PER ARTICLE 15(1) OF INDIA-SWITZERLAND DTAA, THE REMUNERATION DERIVED BY THE APPELLANT AS RESIDENT OF A COUNTRY (I.E. SWITZE RLAND) IN RESPECT OF EMPLOYMENT EXERCISED IN SUCH OTHER COUNT (SWITZERLAND) SHALL B E TAXABLE ONLY IN SUCH OTHER COUNTRY (SWITZERLAND) UNLESS EMPLOYMENT EXERCISED I N ANOTHER COUNTRY (I.E. INDIA). THE APPELLANT WOULD BE TAXABLE IN INDIA ONL Y IF H EXERCISED HIS EMPLOYMENT IN INDIA( PAGES 51-53 AND PAGE 77-79 OF THE PAPER-B OOK) 3.4 THE APPELLANT HAS DERIVED SALARY INCOME OF INR 28,44,650 FOR WORK DAYS! SERVICES RENDERED I SWITZERLAND AND WAS A RESIDENT IN SWITZERLAND. HENCE, THE PROVISIONS OF ARTICLE 15(1) OF THE INDIA SWITZERLAN D DTAA ARE APPLICABLE TO HIM. 3.5 PARAGRAPH I OF 2005 MODEL OECD COMMENTARY PROVI DES THE GENERAL RULE RELATING TO TAXATION F INCOME FROM EMPLOYMENT THAT SUCH INCOME IS TAXABLE IN THE STATE WHERE THE EMPLOYMENT IS ACTUALLY EXERCISED. E MPLOYMENT IS EXERCISED IN THE PLACE WHERE THE EMPLOYEE IS PHYSICALLY PRESENT WHEN PERFORMING THE ACTIVITIES FOR WHICH THE EMPLOYMENT INCOME IS PAID. ITA NO.1979/MDS/2017 10 3.6 A PLAIN READING OF ARTICLE 1 AND ARTICLE 15 CLE ARLY ENVISAGES THAT THE PROVISIONS OF THE DTAA AR APPLICABLE TO A PERSON WH O IS A RESIDENT OF AT LEAST ONE OF THE COUNTRIES. THE DTAA DOES NOT DEPRIVE THE PER SON FROM CLAIMING BENEFITS OF THE TREATY IF THE PERSON MERELY QUALIFIES AS A NCN RESIDENT OF ONE OF THE COUNTRIES. 3.9 THE DECISION OF SWAMINATHAN RAVICHANDRAN V. ITO ( ITA 299/MDS/ 2016) APPLIED BY THE LEARNED AO AND CIT(A) IS DISTINGUISH ABLE IN THE FACTS OF THE APPELLANTS CASE AS UNDER: (A) IN THE CASE OF SWAMINATHAN, THE SERVICES WERE U TILISED BY THE INDIAN COMPANY FOR GENERATION OF INCOME IN INDIA WHEREAS IN THE PR ESENT CASE, THE SERVICES ARE ADMITTEDLY AND INDISPUTABLY RENDERED TO ALCATEL SWI TZERLAND IN SWITZERLAND AND THIS FACT HAS NOT BEEN DISPUTED OR ADDITIONAL EVIDE NCE SOUGHT BY THE AUTHORITIES BELOW (PAPER BOOK PAGES 60-63, 13-15) (B) IN THE CASE OF SWAMINATHAN, THE CONCERNED PROVI SIONS PERTAIN TO INDIA- CHINA DTAA WHEREAS THE PRESENT CASE RELATES TO INDIA-SWIT ZERLAND DTAA. (C) THE AO HAS, IN THE PRESENT CASE, RELIED ON THE LANGUAGE OF ARTICLE 23(2)(A) OF THE INDIA SWITZERLAND DTAA TO DENY THE EXEMPTION UNDER ARTICLE 15(1) INDIA- SWITZERLAND DTAA. THE LEARNED AO HAS WRONGLY INTERP RETED ARTICLE 23(2)(A) INDIA- SWITZERLAND DTAA PERTAINING TO A RESIDENT OF SWITZERLAND WHO ,MAY CLAIM EXEMPTION IN SWITZERLAND OF INCOME THAT MAY BE TAXE D IN INDIA. THE SAME HAS NO APPLICABILITY WHERE EXEMPTION IS CLAIMED IN INDIA, IN RESPECT OF INCOME ONLY TAXABLE IN SWITZERLAND, AS PER THE LANGUAGE OF ARTI CLE 15(1) INDIA- SWITZERLAND DTAA. ITA NO.1979/MDS/2017 11 (D) THE PROVISIONS OF ARTICLE 23 OF THE INDIA SWIT ZERLAND DTAA AT THE OUTSET STATES THAT SUBJECT TO ANY PROVISIONS OF THE LAW O F INDIA WHICH MAY FROM TIME TO TIME BE IN FORCE AND WHICH RELATES TO THE RELIEF OF TAXES PAID IN A COUNTRY OUTSIDE INDIA THUS, ARTICLE 23 PERTAINS TO GRANT OF FOREIG N TAX CREDIT ON INCOME OF A RESIDENT ALSO SUBJECT TO TAX IN ANOTHER COUNTRY. AR TICLE 15(1) OF THE DTAA ON THE OTHER HAND SPECIFICALLY PROVIDES THAT SALARY DERIVE D BY A RESIDENT OF SWITZERLAND IS TAXABLE ONLY IN SWITZERLAND IN RESPECT OF EMPLOYMEN T EXERCISED IN SWITZERLAND. (E) THERE IS NO SPECIFIC NEXUS BETWEEN ARTICLE 15(1 ) AND ARTICLE 23 OF THE DTAA. (F) THE EXEMPTION CLAIMED UNDER ARTICLE 15(1) OF TH E DTAA HAS BEEN ALLOWED, IN IDENTICAL FACTS AND CIRCUMSTANCES, IN THE CASES OF ARJUN BHOWMIK (ITAT DELHI), NEERAJ BADAYA (ITAT JAIPUR) J AND BHOLANATH PAI (IT AT BANGALORE), SUNIL CHITTARANJAN MUNSIF (ITAT, AHMEDABAD). LD.A.R PLEADED THAT IN VIEW OF THE ABOVE POINTS, TH E EXEMPTION CLAIMED BE GRANTED. 4. ON THE OTHER HAND, LD.D.R DREW MY ATTENTION THA T THE ASSESSEE CLAIMED EXEMPTION IN INDIA IN ACCORDANCE WITH THE P ROVISIONS OF ARTICLE-15 OF THE DTAA BETWEEN INDIA AND SWISS CONF EDERATION. THE ASSESSEES CLAIM UNDER ARTICLE 15(1) OF THE DTAA IS NOT IN ORDER SINCE AS PER ARTICLE 23 OF DTAA, ONLY RESIDENTS ARE ALLOW ED TO CLAIM RELIEF UNDER THE DTAA. IN THIS CASE, THE ASSESSEE IS A RES IDENT OF SWITZERLAND, AND HENCE THE ASSESSEE IS NOT ELIGIBLE TO CLAIM RELIEF ITA NO.1979/MDS/2017 12 UNDER 15(1) OF THE DTAA. THE ARTICLE-23 OF DOUBLE T AXATION ELABORATELY IS REPRODUCED AS UNDER:- [ARTICLE 23] ELIMINATION OF DOUBLE TAXATION .1.(A) SUBJECT TO ANY PROVISIONS OF THE LAW OF INDI A, WHICH MAY FROM TIME TO TIME BE IN FORCE AND WHICH RELATES TO THE RELIEF OF TAXE S PAID IN A COUNTRY OUTSIDE INDIA, WHERE A RESIDENT OF INDIA DERIVES INCOME WHICH, IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, MAY BE TAXED IN SWITZ ERLAND, INDIA SHALL ALLOW AS A DEDUCTION FROM THE TAX ON THE INCOME OF THAT RESIDE NT AN AMOUNT EQUAL TO THE INCOME-TAX PAID IN SWITZERLAND WHETHER DIRECTLY OR BY DEDUCTION. SUCH DEDUCTION SHALL NOT, HOWEVER, EXCEED THAT PART OF THE INCOME- TAX (AS COMPUTED BEFORE THE DEDUCTION IS GIVEN) WHICH IS ATTRIBUTABLE TO THE IN COME WHICH MAY BE TAXED IN SWITZERLAND. (B) WHERE A RESIDENT OF SWITZERLAND DERIVES GAINS F ROM THE ALIENATION OF SHARES WHICH MAY BE TAXED IN INDIA ACCORDING TO ARTICLE 13 , PARAGRAPH 5, SUB-PARAGRAPH (B), INDIA SHALL ALLOW AS A DEDUCTION FROM TAX ON T HAT INCOME, AN AMOUNT EQUAL TO THE INCOME TAX PAID IN SWITZERLAND ON THESE CAPITAL GAINS. THE DEDUCTION SHALL NOT, HOWEVER, EXCEED THAT PART OF THE INDIAN INCOME -TAX, WHICH IS IMPOSED ON THESE CAPITAL GAINS 2. (A) WHERE A RESIDENT OF SWITZERLAND DERIVES INCO ME WHICH, IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT MAY BE TAXED IN IN DIA, SWITZERLAND SHALL, SUBJECT TO THE PROVISIONS OF SUBPARAGRAPHS ( B), (C) [***] EXEMPT SUCH INCOME FROM TAX BUT MAY, IN CALCULATING TAX ON THE REMAINING INCOME OF THAT RESIDENT, APPLY THE RATE OF TAX WHICH WOULD HAVE BEEN APPLICABLE, IF TH E EXEMPTED INCOME HAD NOT BEEN SO EXEMPTED PROVIDED, HOWEVER, THAT SUCH EXEMP TION SHALL APPLY TO GAINS REFERRED TO IN PARAGRAPH OF ARTICLE 13 ONLY IF ACTU AL TAXATION OF SUCH GAINS IN INDIA IS DEMONSTRATED. ITA NO.1979/MDS/2017 13 (B) WHERE A RESIDENT OF SWITZERLAND DERIVES DIVIDEN DS, INTEREST, ROYALTIES OR FEES FOR [TECHNICAL] SERVICES WHICH, IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 10, 11 AND 12, MAY BE TAXED IN INDIA, SWITZERLAND SHALL AI LOW, UPON REQUEST, A RELIEF TO SUCH RESIDENT. THE RELIEF MAY CONSIST OF, (I) A CREDIT FROM THE SWISS TAX ON THE INCOME OF THAT R ESIDENT OF AN AMOUNT EQUAL TO THE TAX LEVIED IN INDIA IN ACCORDAN CE WITH THE PROVISIONS OF ARTICLES 10, 11 AND 12, SUCH CREDIT S HALL NOT, HOWEVER, EXCEED THAT PART OF THE SWISS TAX, AS COMP UTED BEFORE THE CREDIT IS GIVEN, WHICH IS APPROPRIATE TO THE IN COME WHICH MAY BE TAXED IN INDIA; OR (II) A LUMP SUN REDUCTION OF THE SWISS TAX; OR (III) A PARTIAL EXEMPTION OF SUCH DIVIDENDS, INTEREST, RO YALTIES OR FEES FOR TECHNICAL SERVICES FROM SWISS TAX, IN ANY CASE CONSISTING AT LEAST OF THE DEDUCTION CIT THE TAX LEVIED IN INDIA FROM THE GROSS AMOUNT OF THE DIVIDENDS, INTEREST, ROYALTIES OR FEE S FOR TECHNICAL SERVICES. SWITZERLAND SHALL DETERMINE THE APPLICABLE RELIEF A ND REGULATE THE PROCEDURE IN ACCORDANCE WITH THE SWISS PROVISIONS RELATING TO TH E CARRYING OUT OF INTERNATIONAL CONVENTIONS OF THE SWISS CONFEDERATION FOR THE AVOI DANCE OF DOUBLE TAXATION. (C) [****J 3. ARTICLE 21 RENUMBERED AS ARTICLE 23, BY NOTIFICA TION NO. GSR 74(E), DATED 7-2- 2001 4. AND (CI) OMITTED, BY NOTIFICATION NO. GSR 74( E), DATED 7-2-2001. 1. SUBSTITUTED FOR INCLUDED BY NOTIFICATION NO. G SR 74(E), DATED 7-2-2001. 2. SUB-PARAGRAPH (C) OMITTED BY NOTIFICATION NO. GS R 74(E), DATED 7-2-2001. ITA NO.1979/MDS/2017 14 3. OMITTED BY NOTIFICATION NO.SC) 2903(E), DATED 27 -12-2011. PRIOR TO ITS OMISSION, SUBPARAGRAPH (C); AS AMENDED BY NOTIFICAT ION NO. GSR 74(E), DATED 7- 2-2001, READ AS UNDER: (C) WHERE A RESIDENT OF SWITZERLAND DERIVES INTERE ST DEALT WITH IN SECTIONS 10(4), 10(4B), 10(15 )(IV) AND 8OL OF THE INDIAN INCOME-TA X ACT, 1961 (43 OF 1961) AND REFERRED TO IN SUB-PARAGRAPH (D ) OF PARAGRAPH 3 OF ARTICLE 11, SWITZERLAND SHALL ALLOW, UPON REQUEST, A RELIEF TO SUCH RESIDENT OF A N AMOUNT EQUAL TO 10 PER CENT OF THE GROSS AMOUNT OF THE INTEREST. AS PER CLAUSE 2 (A) OF THE ARTICLE 15 OF THE DTAA B ETWEEN INDIA AND SWISS CONFEDERATION, A RESIDENT OF SWITZERLAND DERIVES IN COME, WHICH IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT MAY BE TAXED IN INDIA, SWITCHERLAND SHALL, SUBJECT TO THE PROVISIONS OF SUB PARAGRAPH (B)(C) E XEMPT SUCH INCOME FROM TAX. THE EXEMPTION UNDER ARTICLE 15 (1) OF THE DTAA BETW EEN INDIA AND SWISS CONFEDERATION IS APPLICABLE ONLY TO RESIDENT MD ANS . IN THIS ASSESSEES CASE, THE ASSESSEE IS A TAX RESIDENT OF SWITZERLAND AND NON R ESIDENT IN INDIA AS PER THE PROVISIONS OF THE INCOME-TAX ACT, 1961. AS THE ASSE SSEE IS A NON RESIDENT, EXEMPTION UNDER ARTICLE 15 (1) OF THE DTAA BETWEEN INDIA AND SWISS CONFEDERATION IS NOT APPLICANLE BECAUSE OF THE ARTI CLE 23 OF THE DTAA WHICH ALLOWS EXEMPTION ONLY TO A RESIDENT INDIAN ASSESSEE . THE CLAIM OF THE ASSESSEE UNDER ARTICLE 15 (1) OF THE DTAA BETWEEN INDIA AND SWISS CONFEDERATION IS NOT IN ORDER AND CANNOT BE ENTERTAINED. THE EXEMPTION UNDE R ART DC 15(1) IS NOT APPLICABLE TO THE ASSESSEE AND THE SALARY PAID IN I NDIA IS TAXABLE UNDER SECTION 5(2) OF THE INCOME-TAX ACT, 1961. 4.1 FURTHER, LD.D.R SUBMITTED THAT CO-ORDINATE BEN CH OF CHENNAI TRIBUNAL IN ITA NO.299/MDS/2016 DATED 05 082016 IN THE CASE OF SRI SWAMINATBARI RAVIDANDRAN VS ITO, CHENNAI HAS HELD T HAT THE SALARY ITA NO.1979/MDS/2017 15 RECEIVED IN INDIA IS TAXABLE ONLY IN INDIA. THE ABO VE DECISION FALLS IN LINE WITH THE CONTENTIONS OF THE DEPARTMENT. 4.2 FURTHER, IT IS ALSO SUBMITTED THAT KOKATTA BRA NCH OF ITAT IN THE CASE OF TAPAS KURNAR BANDOPADAHAY VS DDIT DOTED 010 6-2016 REPORTED IN IN 70 TAXMANN.CORN 50 AS HELD THAT THE SALARY RECEIVED BY A NON RESIDENT IN INDIA IS TAXABLE IN INDIA AS PER THE PROVISIONS OF THE INCOME TAX ACT. THE AUTHORITY FOR ADVANCE RULING IN (2007) 294 ITR 17/ AAR IN THE CASE OF AN EMPLOYEE OF INFOSYS WHO W AS DEPUTED TO NORWAY HAS RULED THAT THE SALARY PAID BY THE EMPLOY ER IN INDIA IS TAXABLE IN INDIA THOUGH THE ASSESSEE IS A NON RESID ENT IN INDIA DURING THE RELEVANT FINANCIAL YEAR AND HE IS NOT ELIGIBLE TO ANY RELIEF IN TERMS OF DTAA. BOTH THE DECISIONS ALSO SUPPORT THE VIEW O F LD. ASSESSING OFFICER. THE ASSESSEE HAS BEEN PAID SALARY IN INDIA BY AN INDIAN COMPANY, IN INDIAN RUPEES AND IN A SAVINGS BANK MAI NTAINED IN INDIA, ACCORDINGLY, THE SALARY RECEIVED IN INDIA IS TAXABL E IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5 AND 9 AND 192 OF THE IN COME-TAX ACT, 1961 AS IT IS RECEIVED IN INDIA AND TAXABLE IN INDI A. THE ASSESSEES CLAIM OF EXEMPTION OF SALARY UNDER ARTICLE 15 OF TH E DTAA BETWEEN ITA NO.1979/MDS/2017 16 INDIA AND SWITZERLAND IS NOT IN ACCORDANCE WITH LAW , HENCE NOT ENTERTAINED AND DISALLOWED. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN THIS CASE, THE MAIN ARGUMENT OF THE LD.A .R IS THAT THE SALARY WAS ACCRUED OUTSIDE INDIA AS SUCH IN VIEW OF THE JU DGEMENT OF KOLKATTA HIGH COURT IN THE CASE OF UTANKA ROY VS. I .T.O REPORTED IN 390 ITR 109 (CALCUTTA) WHEREIN HELD THAT INCOME REC EIVED BY THE ASSESSEE TOWARDS SALARY FOR AN EMPLOYMENT OUTSIDE I NDIA TO BE CONSIDERED AS INCOME RECEIVED OUT OF INDIA AND NOT TO BE TAXABLE IN INDIA. FURTHER, THE ASSESSEE RELIED ON THE JUDGMEN T OF CIT VS.AVTAR SINGH WADHWAN IN (2001) 247 ITR 260(BOM.) & ARVIND SINGH CHAUHAN IN (2014) 147 ITD 409. ACCORDINGLY, HE SUB MITTED THAT SALRY WAS ACCRUED OUTSIDE INDIA AND BY ARRANGEMENT, WAS R EMITTED TO INDIA AND RECEIVED IN INDIA THAT CONSTITUTE RECEIPT OF SA LARY IS OUTSIDE INDIA. 5.1 ON THE OTHER HAND, THE CONTENTION OF LD.D.R IS THAT SALARY FOR SERVICES RENDERED OUTSIDE INDIA WOULD BE TAXABLE IN INDIA, IF IT WAS RECEIVED IN INDIA AS PER SEC.5(2)(A) OF THE ACT. A S SEEN FROM THE ITA NO.1979/MDS/2017 17 FACTS OF THE CASE OF THE ASSESSEE WAS CONTINUED TO BE IN THE PAY-ROLL OF INDIAN COMPANY M/S. ALCATEL LUCENT INDIA LTD., NEW DELHI AND SALARY WAS PAID AND CREDITED IN INDIAN RUPEES TO TH E ASSESSEES BANK ACCOUNT WITH HDFC BEARING NO.04931130003475 AT MUGA PERU, CHENNAI. IT IS ALSO NOTED THAT IN ACCORDANCE WITH T HE PROVISIONS OF THE SECTION 192 OF THE ACT, THE COMPANY WAS ALREADY DED UCTED THE TAX AT SOURCE FROM THE SALARY PAID TO THE ASSESSEE. THE TE RMS AND CONDITIONS ALSO SHOW THAT THE PLACE OF PAYMENT OF S ALARY TO THE ASSESSEE IS INDIAN TERRITORY, WHICH IS ORIGINALLY A SSESSEES FIRST HOME COUNTRY. 5.2 IN MY OPINION, THE SALARY IS INCLUDIBLE IN TH E ASSESSMENT UNDER SECTION 5(2)(A) OF THE ACT, WHICH SAYS THAT ANY INC OME RECEIVED BY A NON-RESIDENT IN INDIA IS TAXABLE IN INDIA. THERE IS A FAIR FINDING IN THE ORDER OF THE LOWER AUTHORITIES THAT THERE IS NO DIS PUTE THAT THE SALARY WAS RECEIVED IN INDIA. THIS SHOULD PUT END TO THE C ONTROVERSY, THEREFORE, IT WAS RIGHTLY TAXED IN INDIA U/S.5(2)(A ) OF THE ACT. FURTHER, IN THE PRESENT CASE, THE SALARY INCOME WAS RECEIVED BY THE ASSESSEE IN INDIA. IT IS NECESSARY TO EXAMINE WHETHER THE S ALARY IS DEEMED TO ITA NO.1979/MDS/2017 18 ACCRUE OR ARISE IN INDIA BY APPLYING THE SEC.9(1) O F THE ACT AND EXPLANATION THERETO. IN MY OPINION, THE EXPLANATION TO 9(1)(II) OF THE ACT SAYS THAT WHERE THE SALARY IS PAYABLE FOR SERVI CES RENDERED IN INDIA, THE SAME SHALL BE REGARDED AS INCOME EARNED IN INDIA. 5.3 THE EFFECT OF EXPLANATION IS THAT IT IS NO LONG ER OPEN TO AN ASSESSEE TO SAY THAT THOUGH HE RENDERED SERVICES IN INDIA, SINCE THE CONTRACT OF EMPLOYMENT WAS ENTERED INTO OUTSIDE IND IA, THE SALARY COULD NOT BE SAID TO HAVE ACCRUED OR ARISEN IN INDI A. IN SUCH A CASE, THE EXPLANATION DEEMS THE SALARY AS HAVING ACCRUED OR ARISEN IN INDIA, NOTWITHSTANDING THAT THE CONTRACT OF EMPLOYM ENT WAS ENTERED INTO OUTSIDE INDIA. FROM THE EXPLANATION IT IS NOT PERMISSIBLE TO INFER THE COROLLARY, VIZ. THAT IN ALL CASES WHERE SERVICE S ARE RENDERED OUTSIDE INDIA, THE SALARY CANNOT BE DEEMED TO ACCRU E OR ARISE IN INDIA. THE EXPLANATION DEALS WITH A DIFFERENT SITU ATION AND ITS SCOPE SHOULD NOT BE EXTENDED TO CASES WHICH ARE NOT CONTE MPLATED BY IT. THE AO HAS RIGHTLY APPLIED THE FIRST PART OF SEC.5( 2)(B). HE HELD THAT SINCE THE CONTRACT OF EMPLOYMENT HAD BEEN ENTERED I NTO IN INDIA AND SINCE ALL RIGHTS FLOWING THERE FROM WERE ALSO ENFOR CEABLE IN INDIA, THE ITA NO.1979/MDS/2017 19 SALARY MUST BE HELD TO HAVE ACCRUED OR ARISEN TO TH E ASSESSEE IN INDIA. HE HAD NOT, THEREFORE, CONSIDERED IT NECESSA RY TO ADDRESS THE QUESTION AS TO WHETHER THE SALARY COULD BE DEEMED TO ACCRUE TO THE ASSESSEE IN INDIA. 5.4 SEC. 9(1) PROVIDES FOR CERTAIN SITUATIONS WHER E THE INCOME MAY BE 'DEEMED' TO ACCRUE OR ARISE IN INDIA. THE LATER PART OF S. 5(2)(B) AND S. 9(1) CAN BE RESORTED TO ONLY WHEN THE INCOME IS NOT NORMALLY TO BE CONSIDERED AS HAVING ACCRUED OR ARISEN TO THE ASSESSEE IN INDIA. THESE PROVISIONS CAN BE RESORTED TO ONLY TO FIND OUT WHETHER THE LAW HAS PROVIDED FOR DEEMING THE INCOME IN QUES TION AS HAVING ACCRUED OR ARISEN IN INDIA. THE DEEMING PROVISIONS CANNOT BE LOOKED INTO WHEN UNDER GENERAL PRINCIPLES, THE INCOME HAS ACCRUED OR ARISEN TO THE ASSESSEE IN INDIA. THE SALARY RECEIVED BY TH E ASSESSEE HAS ACCRUED OR ARISEN TO THE ASSESSEE IN INDIA, FOR THE REASONS GIVEN BY A.O WITH WHICH I FULLY AGREE AND IT IS, THEREFORE, NOT NECESSARY TO EXAMINE THE QUESTION WHETHER THE SALARY IS ALSO DEE MED TO ACCRUE OR ARISE TO THE ASSESSEE BY APPLYING S. 9(1) AND THE E XPLANATION THERETO. THEREFORE, THE SALARY RECEIVED BY THE ASSESSEE IN I NDIA WAS TAXABLE ITA NO.1979/MDS/2017 20 U/S.5(2)(A) ON RECEIPT BASIS AND ALSO AS HAVING ACC RUED OR ARISEN TO HIM IN INDIA U/S.5(20(B). SEC.9(1)(II) READ WITH EX PLANATION THERETO WAS NOT RELEVANT FOR THE CONTROVERSY. 5.5 FURTHER, THE ASSESSEE HAS TAKEN ONE MORE PLEA THAT IN VIEW OF ARTICLE 15(1) OF THE DTAA WITH SWITZERLAND, THE SAI D SALARY IS NOT TAXABLE IN INDIA. I HAVE GONE THROUGH ARTICLE 15(1 ) OF THE DTAA. IN MY HUMBLE OPINION, ARTICLE-15 OF DTAA WITH INDIA A ND SWITZERLAND, EXEMPTION ALLOWABLE TO ONLY RESIDENT INDIAN AND NOT TO THE NON- RESIDENT. IN THE PRESENT CASE, THERE IS NO DISPUTE THAT AS THE ASSESSEE IS A NON-RESIDENT, THE SAID ARTICLE IS NOT APPLICAB LE. THIS VIEW IS FORTIFIED BY THE ORDER OF TRIBUNAL IN THE CASE SHR I SWAMINATHAN RAVICHANDRAN VS. I.T.O IN ITA NO.299/MDS./2016 VIDE ORDER DATED 05.08.2016. 5.6 THE DECISION IN THE CASE OF ARVIND SINGH CHAUH AN FOLLOWED THE DECISION IN THE CASE OF A P KALYANKRISHNAN [1992] 1 95 ITR 534, WHERE INCOME HAD SUFFERED TAX OUTSIDE LNDIA AND THE N WAS RECEIVED IN INDIA FOR THE SAKE OF CONVENIENCE. IN THE PRESEN T CASE, THE INCOME ITA NO.1979/MDS/2017 21 HAD NEITHER SUFFERED TAX NOR BEEN RECEIVED IN ANY O THER JURISDICTION. IN THE CASE OF ARVIND SINGH CHAUHAN (2014) 42 TAXMAN.C OM 285(AGRA), THE AGRA TRIBUNAL TOOK A VIEW THAT THE TAXPAYER HAD A LAWFUL RIGHT TO RECEIVE A SALARY AT THE LOCATION OF THE FOREIGN EMP LOYER AND THE TRANSFER OF MONEY TO INDIA WAS ONLY A MATTER OF CON VENIENCE. HOWEVER, AS PER SECTION 5(2)(A) OF THE ACT, THE REL EVANT / CRITERION IS NOT THE RIGHT TO RECEIVE A SALARY, BUT THE RECEIPT OF SALARY INCOME WHICH IS IN INDIA. 5.7 THE DECISION IN THE CASE OF CAPTAIN A L FERNAN DEZ (81 ITD 203)(MUM.) CLEARLY LAYS DOWN THAT SALARY FOR SERVIC ES RENDERED ABOARD A SHIP OUTSIDE THE TERRITORIAL WATERS OF ANY COUNTRY WOULD BE TAXABLE IN INDIA, IF IT WAS RECEIVED IN INDIA AS PE R SECTION 5(2)(A) OF THE ACT. THIS DECISION WAS NOT BROUGHT TO NOTICE TO THE AGRA TRIBUNAL IN THE CASE OF ARVIND SINGH CHAUHAN(SUPRA). FOLLOWI NG THE DECISION OF THE MUMBAI TRIBUNAL IN THE CASE OF CAPTAIN A L F ERNANDEZ(81 ITD 203), THE SALARY INCOME RECEIVED BY THE NON-RESIDEN T TAXPAYER IN THE ITA NO.1979/MDS/2017 22 PRESENT CASE WERE HELD AS TAXABLE IN INDIA BY VIRTU E OF RECEIPT IN INDIA AS PER SECTION 5(2)(A) OF THE ACT. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMIS SED. ORDER PRONOUNCED ON 16 TH NOVEMBER, 2017. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 16 TH NOVEMBER, 2017 . K S SUNDARAM. ' ( )!*+ ,+%! / COPY TO: 1 . / APPELLANT 3. ' ' -! () / CIT(A) 5. +0 1 )!)23 / DR 2. / RESPONDENT 4. ' ' -! / CIT 6. 1 45 6 / GF