BEFORE THE AUTHORITY FOR ADVANCE RULINGS
(INCOME TAX) NEW DELHI
24th day of August, 2007
PRESENT
HON’BLE MR. JUSTICE P.V. REDDI (CHAIRMAN)
MR. A. SINHA (MEMBER)
APPLICATION NO. AAR 741 OF 2007
Name & address of applicant
Mr. S. Mohan
C/o Mr. R. Subramanian,
Flat No. 2, Anugraha Apartments, 51 (26) Fourth Trust, Mandavelipakkam, Chennai – 600028
Commissioner Concerned
Director of Income-Tax (International Taxation), Chennai
Present for the Applicant
Mr. M.R. Ravichandran, Advocate
Mr. V.S. Jayakumar, Advocate
Present for the Department
Mr. A.N. Pahuja, CIT
Mr. D.K. Singh, DIT (Int. Tax)
The salary paid by the employer in India is taxable in India, though the assessee is non- resident in India during the relevant financial year. His salary income has been rightly taxed in India and he is not eligible to get any relief in terms of the DTAA( Para 5)
R U L I N G
1. The facts giving rise to this application are as follows:
1.1 The applicant filed a return of income for the assessment year 2006-07 with the ADIT(International Taxation), Chennai, disclosing the income of Rs. 6,56,390/- and paid tax of Rs. 1,49,855/- including the tax withheld. Infosys Technology Ltd., Bangalore, with whom the applicant was employed withheld an amount of Rs.89,639/- towards income-tax by way of deduction from the salary of Rs.5,08,615/-. The applicant states that during the relevant financial year 2005-06 he was employed with HCL Ltd., New Delhi, from 1.4.2005 to 10.5.2005 and with Infosys Technology, Bangalore from 16.5.2005 to 31.3.2006. He states that he was deputed on official duty to Norway by his employer Infosys Technology Ltd., and he worked there for more than 182 days and he is therefore a non-resident for tax purposes.
1.2. In the return of income filed by the applicant the income by way of salary from the employers in India was disclosed and the tax due thereon was paid. No claim for exemption or deduction was put forward. Taking inspiration from the ruling of this Authority in British Gas (I) Pvt. (Application No. AAR/725/2006), the present application was filed contending that the salary paid by Infosys Technology Ltd. to a non-resident employee for rendering services outside India is not taxable in India in view of the Double Taxation Avoidance Agreement and, therefore, he was not legally liable to pay the tax.
1.3 It is, thus, seen that the applicant received the salary income in India in Indian rupees for the services rendered by him in Norway for a period exceeding 182 days during the financial year. The applicant returned the income and paid the tax without claiming exemption. However, that does not disentitle him from seeking ruling to determine his legal liability to pay income-tax.
2. The applicant's claim is based on the Double Taxation Avoidance Agreement which in the instant case is the Indo-Norway DTAA notified on 9th September, 1987. The taxability of income from employment is covered by Article 16 of the said Agreement which reads as follows:
Article 16 - Dependent personal services:
1. Subject to the provisions of articles 17, 18, 19, 20, 21 and 22, 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 State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
2. Notwithstanding the provisions of paragraph (1), remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other contracting State shall be taxable only in the first-mentioned State if –
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in any two consecutive years of income; and
(b) the remuneration is paid by, or on behalf of, an employer who is a resident of the State of which the recipient is a resident; and (c) the remuneration is not reasonably connected with the activities of a permanent establishment or a fixed case which the employment has in the other State:.
2.1. Another relevant provision is clause (2) of Article 25 of DTAA which says that where a resident of India derives income which in accordance with the provisions of this Convention, may be taxed in Norway, India shall allow as a deduction from the tax on the income of that resident an amount equal to the income-tax paid in Norway whether directly or by deduction. So also if a resident of Norway derives income which may be taxed in India, Norway shall exempt such income subject to the other clauses of the Article.
2.2. The Director of 1.1. (International Taxation) Chennai in his comments submits that in the present case, Article 16(1) but not Article 16(2) of DTAA is applicable; hence he can be taxed in the status of resident on the income derived by him in India though the services were rendered in Norway. However, Indian tax authorities are bound to grant necessary relief, to ensure that the income of the applicant is not taxed twice. In order to get relief the applicant has not submitted any proof of payment of tax on this income in Norway. It is also pointed out that the ruling in British Gas (I) Pvt. Ltd. is distinguishable.
Following is the question framed in the application:
Whether the salary paid by the employer in India is taxable in India, though the assessee is non- resident in India during the relevant financial year.
3. We have heard the arguments of the learned counsel for the applicant and the departmental representative Mr. A.N. Pahuja, Commissioner of Income-tax. The claim has to be decided on the basis of the provisions of the DTAA referred to above. It is common ground that the applicant's liability to pay tax under the relevant charging provisions of the Indian Income-tax Act is not in dispute. Para 2 of Article 16 does not come into play in the instant case for the reason that the applicant's stay in Norway was for a period exceeding 182 days in the financial year 2005-06. The taxability of his employment income has to be determined in the light of Para 1 of article 16 only. On an analysis of Article 16(1), it is clear that unless employment is exercised in the other Contracting State, the remuneration derived shall be taxable only in the State of residence. However, if the employment is exercised outside the usual State of residence, the remuneration derived therefrom 'may be taxed' in the state in which the employment was exercised. Thus, it was open to the State in which the employment was exercised to subject the remuneration derived by a resident of a Contracting State. That means, Norway could have taxed the applicant, but it is not the case of the applicant that he has been so taxed or that he paid any tax voluntarily or otherwise, to the Norway Government. In such a situation, no relief is available to the applicant, as rightly contended by the Revenue. It is apposite to note that the expression 'may be taxed' has been used In contradistinction to the expression 'shall be taxable' occurring In Article 16(2). That this distinction is not without significance is emphasized in the Commentary on the OECD Model Convention, which is a valuable aid to the interpretation of treaty provisions. Going by the plain interpretation of the expression 'may be taxed' and the interpretation that has been placed in the said commentary, right of taxation is available to both the Contracting States in regard to the employment income of the applicant in accordance with the relevant domestic laws. We repeat that the applicant has not produced any proof that in exercise of such right, Norway State subjected him to tax or that the applicant made any payment to the State of Norway on account of income tax.
3.1. Faced with this difficulty, the learned counsel for the applicant has tried to bring the applicant's case within the ratio of the decision of Supreme Court in Commissioner of Income-tax v. P.V.A.L. Kulandagan Chettiar 267 ITR 654 in which general principles governing taxation of global income have been stated by the Supreme Court in the following words:
"Where liability to tax arises under the local enactment the provisions of sections 4 and 5 of the Act provide for taxation of global income of an assessee chargeable to tax thereunder. It is subject to the provisions of an agreement entered into between the Central Government and the Government of a foreign country for avoidance of double taxation as envisaged under section 90 to the contrary, if any, and such an agreement will act as an exception to or modification of sections 4 and 5 of the Income-tax Act. The provisions of such agreement cannot fasten a tax liability where the liability is not imposed by a local Act Where tax liability is imposed by the Act, the agreement may be resorted to either for reducing the tax liability or altogether avoiding the tax liability. In case of any conflict between the provisions of the agreement and the Act, the provisions of the agreement would prevail over the provisions of the Act, as is clear from the provisions of section 90(2) of the Act. Section 90(2) makes it clear that "where the Central Government has entered into an agreement with the Government of any country outside India for granting relief of tax, or for avoidance of double taxation, then in relation to the assessee to whom such agreement applies, the provisions of the Act shall apply to the extent they are more beneficial to that assessee" meaning thereby that the Act get modified in regard to the assessee in so far as the agreement is concerned if it falls within the category stated therein."
3.2. In that case, the High Court repelled the contention of the appellant (Revenue) that wherever the expression 'may be taxed' is used, there is no prohibition or embargo against the authorities acting under the provisions of Indian Income-tax Act assessing the category or class of income concerned. Notwithstanding the said expression used in the treaty between India and Malaysia, the High Court took the view that the Indian authorities could not tax the income of the applicant on the test of closer personal and economic relations. This decision has been confirmed by the Supreme Court. Before adverting to the crucial observations of the Supreme Court, it may be pointed out that the High Court refused to place reliance on the articles of Model Conventions prepared by OECD on the ground that it would not be a safe and acceptable guide for construction. On this aspect and on the scope of expression 'may be taxed', the Supreme Court did not express any opinion. Moreover, the Supreme Court clarified that it affirmed the judgement of High Court for different reasons. We quote the following passage in the judgement of the Supreme Court to which our attention was drawn by the applicant's counsel:
“We need not enter into an exercise in semantics as to whether the expression “may be" will mean allocation of power of tax or is only one of the options and it only grants power to tax in that State and unless tax is imposed and paid, no relief can be sought. Reading the treaty in question as a whole, when it is intended that even though it is possible for a resident in India to be taxed in terms of sections 4 and 5, if he is deemed to be a resident of a contracting State where his personal and economic relations are closer, then his residence in India will become irrelevant, the treaty will have to be interpreted as such and prevails over sections 4 and 5 of the Act. Therefore, we are of the view that the High Court is justified in reaching its conclusion, though for different reasons from those stated by the High Court."
3.3. Thus, the Supreme Court's conclusion rests on the fact that the personal and economic relations of the assessee in relation to the capital asset were far closer in the State of Malaysia than in India and therefore the residence in India was irrelevant. The wording "personal and economic relation", is found in Article IV dealing with the fiscal domicile. Para 2 of the said Article provides as to how the residential status shall be determined in the case of a person considered as resident of both the contracting States as per para 1. In that context, certain rules were spelt out in Art. IV(2). Among them, clause (a) is relevant for our purpose:
Article IV:
1. xx xx xx xx xx xx
2. Where by reason of the provisions of paragraph 1 of this article an individual is a resident of both contracting states, then his residential status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident of the contracting State in which he has a permanent home available to him. If he has a permanent home available to him in both contracting States, he shall be deemed to be a resident of the contracting State with which his personal and economic relations are close;
(b) xx xx xx xx xx xx
(c) xx xx xx xx xx xx
(d) xx xx xx xx xx xx
3.4. This judgement does not in any way support the contention of the applicant. Firstly, the language of treaty provision in which the expression "may be taxed" was used in Article VI of India-Malaysia Treaty is not comparable to the language employed in Art. 16(1) of Indo-Norway Treaty with which we are concerned. Secondly, the question of determination of residential status by the application of criteria contained in Article IV of the Treaty does not arise here. Thirdly, even if such test is applied, it cannot be said that the applicant has closer ties - personal or economic with Norway. Here is a case where applicant was sent on deputation to Norway and for services rendered there, his salary was paid in India in Indian rupees by his Indian employer. It is not the case of the applicant that during the brief period he worked in Norway on behalf of the Indian company, he developed close personal or economic relations with that country. The factual situation in the case dealt with by the Supreme Court is vastly different. In that case, the assessee-company owned rubber estate in Malaysia. It sold the property as a result of which short-term capital gain accrued. The assessee was having no permanent establishment for business in India. It was on those facts that it was held that the fiscal residence test as per Article IV.2 (a) was not satisfied for the purpose of bringing income to Indian taxation. We have no hesitation in holding that the decision of the Supreme Court in 267 ITR 654 cannot be called in aid by the applicant.
3.5. The ruling in British Gas India P. Ltd. (2006, 157 Taxman, 225) has been referred to in the application filed and also in the course of arguments. We do not think that the said ruling has any bearing on the issues that has arisen in the present case. The concluding part of the Ruling brings out clearly what has been held there. We quote that portion:
“(i) The salary paid by the applicant to Mr. Manish Gupta shall not be taxable in India, if the same has been offered for tax in the U. K. in pursuance of the DTAA.
(ii) The applicant shall not deduct tax at source from salary paid to Mr. Nipun Pradhan and Mr. Manish Gupta in India, provided it is satisfied from the details and particulars furnished under section 192(2) that taxes have been paid on such payments in the U.K."
In the face of the clear stand of the applicant that no income tax was paid nor offered to be paid on the salary income in Norway, the ratio of that Ruling cannot be called in aid.
4. Another contention raised by the counsel for the applicant is based on the order of this Authority under section 245R(2) in the same case of British Gas (I) Pvt. Limited (285 ITR 218). The following observations towards the end of the order have been referred to:
"A careful reading of Explanation (a) would show that the requirement of the Explanation is not leaving India for employment outside India. For the purpose of the Explanation an individual need not be an unemployed person who leaves India for employment outside India. Therefore, the fact that Mr. Gupta was already an employee at the time of leaving India is hardly material or relevant. For all these reasons, we hold that Mr. Manish Gupta is not a resident in India in the financial year 2005-06.”
4.1. These observations were made in the context of construing clause (a) of Explanation to section 6(1) of I.T. Act according to which if an individual who is a citizen of India leaves India in any previous year for the purpose of employment outside India, then in relation to that year, he will be resident in India if he is in India for a period or periods amounting in all to 182 days or more. Section 6 of the Income-tax Act defines 'residence in India'. The issue involved and the provision construed was entirely different in that case. The issue was whether the applicant was non-resident during the relevant year so as to be eligible to seek advance ruling. Construing the said provision in section 6, it was held that the applicant - employee was non-resident, irrespective of the fact that the applicant who was already in employment left India on deputation to U.K.
5. For the foregoing reasons, the question raised in the application should be answered in the affirmative and against the applicant. His salary income has been rightly taxed in India and he is not eligible to get any relief in terms of the DTAA. Accordingly, we pronounce the Ruling.
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Published in Income Tax