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Facts
The assessee, Shivi Srivastava, challenged a Section 263 order by the CIT (International Taxation)-3, Delhi, for AY 2018-19. The CIT had set aside the original Section 143(3) assessment order concerning the taxability of salary, specifically questioning the exemption claimed for Rs. 77,96,975/- received from Continental India Private Limited under the India-China DTAA. The CIT noted a lack of clarity on whether the Indian salary was taxed in China or if services were solely rendered in China.
Held
During the appeal before the ITAT, the Ld. AR submitted that the consequential assessment order, which had made the addition of Rs. 77,96,975/-, was subsequently deleted by the Ld. CIT(A) via an order dated 12.12.2025. As a result, the necessary relief had been granted by the AO, rendering the present appeal before the ITAT infructuous and thus dismissed.
Key Issues
Whether the CIT erred in invoking Section 263 to review the taxability of salary income claimed exempt under Article 15 of the India-China DTAA and Section 9 of the Income Tax Act.
Sections Cited
143(3), 263, 9, Article 15 of India-China Double Taxation Avoidance Agreement
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH, D: NEW DELHI
Before: SHRI VIKAS AWASTHY & SHRI BRAJESH KUMAR SINGH
This appeal has been preferred by the assessee against the order dated 26.03.2024 of the Commissioner of Income Tax (International Taxation)-3, Delhi, [hereinafter referred to as the ‘Ld. CIT] Delhi, pertaining to Assessment Year 2018- 19, vide which the Assessment order dated 12.04.2021 passed under Section 143(3) of the Income-tax Act, 1961(hereinafter referred to as ‘the Act’) by the DDIT/ADIT
ITA No.- 2681/Del/2024 Shivi Srivastava (In. Tax.), Noida (hereinafter referred to as ‘the AO’) was set aside on the issues raised in the show cause notice dated 08.03.2024. In the show cause notice, the issue related to the taxability of salary of Rs. 86,16,798/- from M/s Continental India Private Limited in India and salary of RMB 10,52,765 from M/s Continental Tyres (China) Shanghai Branch during the relevant financial year. The Ld. CIT noted that out of Rs.86,16,798/- the salary of Rs.77,96,975/- received from M/s Continental India Private Limited was claimed as exempt income as per India-China Tax Treaty. Further, the Ld. CIT had noted in the show cause that from the copy of China Tax Return submitted by the assessee, it was not clear whether the income shown in tax return includes salary income received in India or not and subsequently, any tax on the salary received in India have been paid in China or not and moreover, there is no document present on record from the employer company which could establish that all salary credited to assessee in India was accrued to her for services in China only.
1.1 Against the above order of the Ld. CIT, the assessee has raised the following grounds of appeal:-
“1. That on the facts and circumstances of the case and in law the CIT has erred in invoking jurisdiction under section 263 of the Act and setting aside the assessment order passed by the AO without appreciating that the assessment order passed was neither erroneous nor prejudicial to the interest of the revenue 2. That on the facts and circumstances of the case and in law, CIT has erred in not appreciating that the salary received in India pertained to services rendered/exercised outside India and is exempt in view of Article 15 of the India China Double Taxation Avoidance Agreement as well as provisions of section 9 of the Income Tax Act. 1961. 2
ITA No.- 2681/Del/2024 Shivi Srivastava 3. That on the facts and circumstances of the case and in law, the order passed by the CIT under section 263 of the Act is bad in law inasmuch as it violates the principles of natural justice by failing to provide reasonable opportunity of being heard to the Appellant”.
At the outset, the Ld. AR submitted that against the consequential assessment order dated 13.03.2025 passed u/s 143(3) r.w.s. 263 of the Act, wherein the addition of Rs. 77,96,975/- was made by the AO on the ground that the salary of Rs. 77,96,975/- received by the assessee from Continental India Pvt Ltd which is an Indian company in her Indian Bank account during the year under consideration, was taxable in India was deleted by the Ld. CIT(A) vide order dated 12.12.2025 and necessary relief has been granted by the AO in the order giving effect to the aforesaid Ld. CIT(A)’s order.
In view of the above submission of the Ld. AR, this appeal of the assessee becomes infructuous and dismissed accordingly.
Order pronounced in the open court on 18th December, 2025.