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Income Tax Appellate Tribunal, BENCH “L”, MUMBAI
Before: SHRI B.R. BASKARAN & SHRI PAWAN SINGH
O R D E R
PER PAWAN SINGH, JM:
This appeal filed by the Revenue and Cross Objection by assessee are directed against the order of CIT (A)-13, Mumbai dated 30.04.2010 for AY- 2005-06. The Revenue raised following Grounds of appeal:
1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in excluding the overseas income i.e. interest income (Rs.3,28,765/-) dividend income (Rs.9,60,167/-) and capital gain (Rs.l,18,798/-) as taxable income in India. 1a. On the facts and in the circumstances of the case and in law, while deciding the question 1 above the CIT(A)'s failed to appreciate that the assessee is resident and ordinarily resident of India as also confessed by him before the A.O.
2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in granting exemption u/s. 10(10CC) in respect of tax on tax perquisite provided by Siemens AG - Rs.38,04,684/-.
3. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in allowing the expenses of Rs.2,38,709/- paid to broker in US for managing the portfolio. 3a. While doing so the CIT(A)'s failed to appreciate that the expenditure cannot be said to be wholly and exclusively laid down for the purpose of earning dividend which was incurred due to investment activity. 3b. Further the CIT(A)'s failed to appreciate that the assessee had already got the benefit by way of indexation while determining the long term capital gain.
4. The appellant prays that the order of CIT(A) on the above grounds be set aside and that of the AO restored. The appellant craves leave to amend or alter any ground or add a new ground that may be necessary.
2. The assessee raised the following Grounds in his cross objection: The respondent objects to the order dated 30 April 2010 passed by the learned Commissioner of Income-tax (Appeals)-13, Mumbai for the assessment year 2005-06, on the following among the other grounds: Long-term Capital Gains
1. The learned Commissioner (Appeals) erred in not deciding the following grounds in the appeal: "4. The learned Additional Commissioner erred in computing long- term capital gains on shares of US companies at Rs. 1,18,798.
5. The learned additional Commissioner erred in not allowing indexation benefits while computing the capital gains. The learned Additional Commissioner erred in holding that cost inflation index is not applicable on shares of foreign companies."
2. The learned Commissioner (Appeals) ought to have directed the Additional Commissioner to allow indexation benefits while computing capital gains. The learned Commissioner (Appeals) ought to have held that cost inflation index is applicable on shares of foreign companies. Expenses paid to broker in USA The learned Commissioner (Appeals) erred in not deciding the following ground in the appeal: “6. The learned Additional Commissioner erred in holding that expenditure of Rs.2,38,709/- paid to the broker in USA for managing the portfolio is not deductible in computing income under the head ‘Income from Other Sources’.”
4. The learned Commissioner (Appeals) ought to have directed the Additional Commissioner to allow the deduction of Rs. 2,38,709 paid to the broker in USA for managing the portfolio while computing the income under the head ‘Income from Other Sources’
Foreign Tax credit 5. The learned Commissioner (Appeals) erred in not deciding the following grounds in the appeal: “8. The learned Additional Commissioner erred in not allowing claim of credit in respect of taxes paid in Germany and USA respectively.
9. The learned Additional Commissioner erred in holding that the appellant did not submit the documentary evidence in support of the claim of credit for the taxes paid in USA and in Germany.”
6. The learned Commissioner (Appeals) ought to have directed the Additional Commissioner to allow the credit in respect of taxes paid in Germany and USA. General Each one of the above grounds of appeal is without prejudice to any of the others.
Brief facts as culled out from the record of the case that the assessee filed return of income for relevant AY on 13.07.2005 declaring total income of Rs. 4,15,66,170/-. While filing the return, the assessee declared his status as ‘resident but not ordinary resident’. The return of income was selected for scrutiny. During the course of assessment proceeding, the Assessing Officer (AO) asked the assessee to furnish details of stay in India to substantiate his status. The assessee contended in his reply that he was a non-resident and his claim of ordinary resident was wrong. After examining the detail of stay from the copies of Passport, the AO concluded that assessee is “resident and ordinary resident”. The assessee later on during assessment proceedings also claimed that he is resident in USA and consequently is non-resident in India. As per Indo-US Tax Treaty by applying the provision of section 90 of Income-tax Act and claimed that he be treated as non-resident under the I.T. Act irrespective of his stay in India. This claim of assessee was also not accepted by AO. And AO framed the assessment order wherein a sum of Rs. 13,03,704/- was assessed as “income from other sources” Rs. 1,18,798 as an income under the head “Capital Gain” and Rs. 38,04,684/- as income from ‘salary’ and denied the benefit of tax paid in foreign country.
Aggrieved by the order of AO, the assessee filed appeal before the CIT(A). In appeal the assessee was allowed exemption u/s 10(10CC) and also deleted the addition of capital gain and income from other sources. Aggrieved by the order of CIT(A), the Revenue has filed the present appeal before us. And the assessee filed the present C.O.in support of order of CIT(A). 5. First we shall take up the Grounds raised
in filed by Revenue. First Grounds for our consideration is deleting the overseas income i.e. interest income (Rs.3,28,765/-) dividend income (Rs.9,60,167/-) and capital gain (Rs.l,18,798/-) as taxable income in India. Ld. Departmental Representative (DR) for Revenue supported the order of AO and argued that order of CIT(A) be reversed and the order of AO be restored. Ld AR for Authorised Representative (AR) of the assessee argued that assessee is an US as well as Germany national. The assessee is a resident of USA. His worldwide income is subjected to tax in USA. The assessee being an employee of Siemens AG, Germany and was on deputation of M/s Siemens Ltd. India during the relevant period. The return was inadvertently finalized on the basis of assessee resident but not ordinary resident in India. Accordingly, in return of income, the assessee offered salary income for tax, the assessee declared the income of Rs. 4,15,66,170/- and claimed a refund of Rs. 83,949/-. Salary income offered for tax included tax on tax perquisite amounting to Rs. 38,04,684/- and break up of salary was provided. AR of the assessee further argued that during the relevant year, the assessee sold shares of US Companies which were held for a period of more than 12 month. In computing the capital gain/loss, the assessee reduce the index cost of acquisition from the sale proceed of share in accordance with provision of section 8 of I.T. Act. The assessee also earned dividend income in USA and claimed deduction of Rs. 2,38,709/- in respect of expenses paid to broker in USA as these expenses were incurred for the purpose of earning dividend on share purchased in USA.
6. We have considered the rival contention of the parties and perused the material available on record. Article 4 of the Indo US Tax Treaty reads as under :
1. For the purposes of this Convention, the term “resident of a contract in the state” means any person who, under the laws of that state, is liable to a tax therein by reason of his domicile, residence, citizenship, place of management, place of incorporation, or any other criteria of a similar nature, provided, however, that: (a) This term does not include any person who is liable to tax in that state in respect only of income from source of that state; and (b) In the case of any income derived or paid by a partnership, a State, or trust, this term applies only to the extent that the income derived by such partnership, a State or trust is subject to tax in that state as income of a resident, either in its hand or in the hands of its partner or beneficiaries, 2. Where by reason of the provisions of paragraph 1, and individual is a resident of both contracting state, then the status shall be determined as follows: (a) He shall be deemed to be a resident of the state in which he has a permanent home available to him; if he has a permanent home available to him in both the States; he shall be deemed to be a resident of the state with which his personal and economic relations are closer. (b) If the state in which he has his centre of vital interests cannot be determined or if he does not have a permanent home available in either state, he shall be deemed to be resident of the state in which he has a habitual abode; (c) If he has an habitual abode in both the States or in neither of them. He shall be deemed to be resident of the state in which he is a national; (d) If he is a national of both states or of neither of them, then competent authorities of the contracting States shall settle the question by mutual agreement.
In the assessment proceedings the assessee claimed that he should be treated as non-resident under the Income-Tax Act, irrespective of his stay in India and relied upon the decision of Hon’ble Supreme Court in case of CIT vs. P.V.A.I. Kulandagan Chettiar (2004) [(267 ITR 655(SC)]. However, the AO instead concluded that nowhere in Indo US Treaty, it is stated that a resident in USA cannot be an ordinary resident in India based on his stay in India. The CIT(A) while considering the status of assessee observed that from the perusal of Indo-US Tax returns filed by assessee, the assessee along with details of assets and liability has shown one house in Hamburg, Germany, one house in San Francisco USA, jointly owned a house in Stamford USA. Accordingly he concluded that assessee is having permanent home in USA. Thus Ld CIT(A) by following the provisions of Indo-US Tax Treaty and the ratio laid down by Hon’ble Supreme Court in CIT vs. P.V.A.I. Kulandagan Chettiar (supra) deleted the addition of Capital Gain and income from Other Sources.
In CIT vs. P.V.A.I. Kulandagan Chettiar, Hon’ble Supreme Court held: “The assessee not having permanent establishment in India - income derived from Rubber Estate in Malaysia- Not assessable in India- Capital gains arising on sale of immovable property in Malaysia- Not assessable in India.”
Considering the decision of honourable Apex Court and the factual matrix of the present case, we may conclude that, the ld CIT(A) was justified in applying the provision of Indo-US Tax Treaty The fact that income was derived outside India is not disputed by AO, thus the same is not taxable in India. Hence we confirm the findings of the CIT(A) and dismissing this ground of appeal raised by Revenue.
7. Next ground for our consideration is in granting exemption u/s. 10(10CC) in respect of tax on perquisite provided by Siemens AG of Rs. 38,04,664/-. DR for the Revenue supported the order of AO and argued that the CIT(A) wrongly given the benefit of section 10(10CC). AR for assessee argued that income from salary is not chargeable to tax in view of section 10(10CC) of the Act, and the assessee correctly claimed exemption of Rs. 38,04,684/- in the return of income. We have considered the rival contention of the parties and perused the material available on record. The AO while framing the assessment observed that the assessee has included the perquisite received from his employer in his total income while filing the return of income. However, during the assessment proceeding, the assessee claimed that in view of the Delhi Tribunal decision in RBF Rig Corporation LLC 297ITR(AT) 228 Delhi , the amount of Rs.3804684/- should not be included in the assessee’s salary income. The contention of assessee was not accepted by AO. AO concluded that assessee had an option to file a revised return and rejected the claim of assessee for exclusion of Rs. 38,04,684/- from the head “Income from Salary”. Before the CIT(A) while arguing this ground, it was argued that assessee made a claim of deduction in the course of assessment proceeding in the light of special bench decision in ITAT, Delhi in RBF Rig Corporation LLC (297 ITR (AT to 228 Del.) Assessee could not file revised return within the time prescribed. The CIT(A) while considering the ratio and the case of special bench in case of RBF Rig Corporation LLC (supra) held that tax borne by employer is paid directly to the tax authority and there is no payment to the tax employee, the tax so borne is a non-monetary transaction and the same is exempted u/s 10(10CC) of the Act, and further relied upon the judgment of Delhi High Court in case of Balmukund Acharya in and held that ground/claim raised before the AO was maintainable and allowed the benefit of section 10(10CC). It is well settled law that assessee is entitled to raise not only additional legal submission before the appellate authorities, but also entitled to raise additional claim before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. We have seen that Ld CIT(A) properly appreciated the provision of section 10(10CC) and accepted the claim of assessee which was denied by the AO on wrong premises, hence, we do not find any merit in this ground raised by the Revenue and the same is dismissed.
8. Ground No.3 raised in respect of deletion of disallowance of expenses of Rs. 2,38,709/- paid to the broker in US for managing the portfolio. Ld. DR for Revenue strongly supported the finding of AO and argued that order of CIT(A) be set-aside and the AO be restored. On the other hand, ld. AR for assessee argued that assessee claimed deduction of Rs. 2,38,709/- in respect expenses paid to broker in USA were incurred for the purpose of earning dividend on share purchased in USA. As per our considered opinion, this ground is directly linked with the ground No.1 raised in the present appeal which we have already decided against the Revenue and in favour of assessee holding that the foreign income to the assessee is not taxable in India. Hence the expenses relating to earning to the foreign income does not require any adjudication. Hence, this ground of appeal is also having no merit and the same is dismissed.
9. The other Ground raised under Ground No. 3a, 3b and 4 general in nature and does not require any adjudication from our end.