ITAT Kolkata Order in Tapas Kr. Bandhopadhya Case. Here is Why NRI Employees ,Marine Engg or Others Should Not Lose Sleep Over It .

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salary received in IndiaThere are so many orders from Tribunals and High Court  in which the salary earned abroad but received in India have been considered not chargeable to tax in India for a non-resident employees working outside India . Suddenly one order from ITAT , Kolkata in case of Sri Tapas Kr. Bandhopdhyay vs DDIT(Int. Taxation) , Kolkata [2016] 180 TTJ 702 (Kolkata – Trib.) in which the gist of order is that if the non-resident employee ha not received the salary outside India and got the salary recieved for the first time in India in his /her NRE account , the salary income is taxable in India under section 5(2)(a) of the Income Tax Act.  This order has become a reason to believe for assessing officers to reopen the assessments of many non-resident assessees employee who worked abroad , stayed for more than 182 days outside India or international waters or on foreign ships and got their salary in Non- Resident External Account (NRE ) account . This post is going to explain why the said order of ITAT ( with due respect ) may not find favour with the jurisdictional high court or other high courts or tribunals. Most important aspect of case like Mr Tapas Kr. Bandhopadhyay is that income is taxed under the head of Salary . Before I delve deep , let me shock you ! Here is a concluding remark in a Tribunal judgement , which was considered by other tribunals and High Courts while giving verdict in favour of assessee on teh same issue .

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 receipt 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.

Do you know aforesaid order was considered at least six orders by various Tribunals and High Court  cases  and was reason for favourable judgment  to assessee on the issue whether the salary income is chargeable on receipt basis in case of non-resident employees?

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