ASHISH BHARDWAJ,GHAZIABAD vs. ITO WARD-36(4), NEW DELHI

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ITA 9232/DEL/2019Status: DisposedITAT Delhi14 June 2021AY 2011-1214 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the assessee's salary income earned outside India for services rendered outside India is not taxable in India, even if credited to an Indian bank account, as he stayed outside India for more than 182 days. The addition for stamp duty was also deleted as it was paid by the assessee's wife.

What were the facts?

The assessee, claiming NRI status, received salary from a foreign employer which was credited to his Indian bank account. The Assessing Officer (AO) reopened the assessment and made additions for salary income and unexplained investment in stamp duty for property purchase.

What were the issues?

Whether salary income earned by a non-resident from a foreign employer for services rendered outside India is taxable in India, and whether stamp duty paid by the assessee's wife constitutes unexplained investment in the assessee's hands.

Which sections of the Income-tax Act were involved?

Section 6,Section 147,Section 148,Section 69A,Section 5(1),Section 5(2)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(7)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, DELHI BENCH : SMC-1 : NEW DELHI

Before: SHRI R.K. PANDA

For Appellant: Shri Akhilesh Kumar, CA
For Respondent: Ms Rano Mukherjee, Sr. DR
Hearing: 17.03.2021Pronounced: 14.06.2021

per his instructions to the employer can be taxed as per provisions of section 5(1 )(a) and (b) of the Income-tax Act, 1961 with regard to scope of income. We have considered all the facts of the case and we find that this issue is covered in favour of the assessee by the decision of Hon'ble ITAT in the case of Ranjit Kumar Bose vs. ITO reported in 18 ITD 230 (ITAT - Calcutta) where it is held as under :- "14. True, in this case, salary income accrued outside India, but was received in India in the same accounting year. It is clear that salary income could not have been brought to tax on accrual basis for the simple reason that it accrued outside India. The provisions of section 5(2)(a) are subject to section 15 which, inter alia, says that salary is chargeable to income-tax on due basis irrespective of the fact whether it has been received or not. So, salary income is not liable to be taxed in India on recent basis under section 15. We are, therefore, clearly of the view that the salary received in India in this case was not chargeable to income-tax under the head 'Salaries' under section 15(a). As has also been pointed out above, this case does not fall either under clause (b) or clause (c) of section 15." ITAT, Delhi has also decided in the case of ADIT vs. Nandan Singh Chauhan reported in 2011 -TII-27-ITAT-DEL-NRI as under :- "We have carefully considered the submissions and perused the record We find is undisputed that the assessee is NRI and he has received income from foreign company for the services rendered outside India. Just merely because he has instructed the salary to be transferred to his FCNR a/c maintained with HSBC bank, Barakhamba Road, Connaught Place, New Delhi can not bring the amount to taxation under Indian Income Tax Act. This view is clearly supported by the tribunal's decision as above. Hence, respectfully following the precedent as above, we uphold the order of Ld. CIT(A) and decide the issue in favour of the assessee and against the revenue." Considering the totality of the facts and circumstances and also ITAT decisions, we uphold the order of the CIT (A) and dismiss the revenue's appeal." 11. Since the assessee in the instant case has stayed outside India for more than 182 days, therefore, respectfully following the decisions cited (supra), I set aside the order of the CIT (A) and direct the Assessing Officer to delete the addition. 12. In the result, the appeal filed by the assessee is allowed.”

12.

Since the assessee, in the instant case, had stayed outside India for more than 182 days and had received salary from a foreign employer outside India for services rendered outside India, therefore, respectfully following the decision cited supra, I set aside the order of the CIT(A) and direct the AO to delete the addition.

13.

So far as the addition of Rs.1,75,000/- sustained by the CIT(A) on account of stamp duty is concerned, I find the same also is liable to be deleted under the facts and circumstances of the case. Admittedly, the AO has not made any addition on account of purchase of immovable property amounting to Rs.49,97,152/- meaning thereby he has accepted the source of that huge amount. So far as the amount of Rs.3,50,000/- towards the stamp duty is concerned, a perusal of the assessment order shows that the amount was paid by Mrs. Vandana Bhardwaj as per the ledger account of M/s Landcraft Developers Pvt. Ltd. which was reproduced by the AO in the body of the assessment order. Therefore, when the money was paid by Mrs. Vandana Bhardwaj, there was no reason for making the addition in the hands of the assessee. The ld. CIT(A) had not given any cogent reason as to why 50% shall be added in the hands of the assessee when the payment was admittedly made by Mrs. Vandana Bhardwaj, a fact brought on record by the AO himself. In any case, if the order of the CIT(A) is accepted, then, 50% of the investment in the property also should be borne by the wife of the assessee, Mrs. Vandna Bhardwaj. Thus, the finding of the CIT(A) becomes contradictory. Since the AO himself has given a finding that Mrs. Vandana Bhardwaj had made the cash payment on 03.12.2010 as per the records maintained by M/s Landcraft Developers Pvt. Ltd., therefore, I do not find any reason to sustain 50% addition in the hands of the assessee. In this view of the matter, I set aside the order of the CIT(A) on this issue and direct the AO to delete the addition. The ground raised by the assessee on this issue is accordingly allowed.

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