READINGandBATES DRILLING CO.AGENT MR.EMANEUL SCHMBRI vs. COMMISSIONER OF INCOME TAX DEHRADUN

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ITA/138/2004HC UttarakhandUKHC01003866200428 September 20052 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the substantial question of law was whether the 'off period' salary paid to the assessee was taxable under Section 9(1)(ii) of the Income Tax Act, 1961. The Court noted that a Division Bench of the same High Court, in the case of Commissioner of Income Tax vs. Sedco Forex International Drilling Co. Ltd. and connected cases reported in (2003) 264 ITR 320, had previously held that payment of salary for the 'off period' was income earned in India, i.e., for services rendered in India under Section 9(1)(ii) of the Act, and was therefore taxable. Following this binding precedent, the High Court dismissed the appeal. The Court did not expressly leave any issue undecided, as the decision on the core issue was based on the prior judgment.

What were the facts?

The appeal was filed by M/s Reading & Bates Drilling Co., acting as the agent of Mr. Emaneul Schembri, against an order dated July 9, 2004, passed by the Income Tax Appellate Tribunal, Delhi Bench ‘B’, New Delhi. The dispute pertains to the Assessment Year 1998-1999. The core of the dispute revolves around the taxability of 'off period' salary paid to a non-resident employee. The assessee contended that this salary should not be taxed in India as the employee was not physically present in India during the 'off period' and the employment contract was executed outside India. The revenue, however, sought to tax this salary.

What were the issues?

1. Whether, on the facts and circumstances, the Tribunal erred in law in not appreciating the true construction of Section 9(1)(ii) of the Income Tax Act, 1961, read with its Explanation? (Question of law) 2. Whether, on the facts and circumstances, the Tribunal erred in holding that the 'off period' salary was chargeable to tax in India despite the non-resident employee's absence from India during that period? (Question of mixed law and fact) 3. Whether, on the facts and circumstances, the Tribunal erred in not appreciating that salary paid for the 'off period', when the employee technicians were physically not present in India and were required to be available for training or on-spot demonstration as per their employment letter, could be said to accrue or deemed to accrue in India so as to be taxable? (Question of mixed law and fact) 4. Whether, on the facts and circumstances, the Tribunal erred in not appreciating that salary paid to a non-resident employee under an employment contract executed outside India for the 'off period' could be held liable to be paid on account of services rendered while the employee was in India? (Question of mixed law and fact) 5. Whether, on the facts and circumstances, the Tribunal misdirected itself in law by basing its conclusion on suspicions, surmises, and irrelevant material? (Question of law) 6. Whether, on the facts and circumstances, the finding arrived at by the Tribunal is perverse? (Question of law) Assessee's contentions: The 'off period' salary paid to a non-resident employee was not taxable in India as the employee was not physically present in India during that period. The employment contract was executed outside India. The salary was not for services rendered in India. The Tribunal's conclusion was based on suspicions and surmises and was perverse. Revenue's contentions: The revenue argued that the 'off period' salary was taxable in India under Section 9(1)(ii) of the Income Tax Act, 1961.

Which sections of the Income-tax Act were involved?

Section 9(1)(ii)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Income Tax Appeal No. 138 of 2004 M/s Reading & Bates Drilling Co. as agent of Mr. Emaneul Schembri …Appellant Versus The Commissioner of Income Tax, Dehradun. ….Respondent Miss. Krishi Shukla/Dr. Udyog Shukla, Advocates for the appellant. Mr. S.K. Posti, Advocate for the respondent. Coram: Hon. Cyriac Joseph, C.J. Hon. J.C.S. Rawat, J.

JUDGMENT

CYRIAC JOSEPH, C.J. (Oral)

1.

This appeal is filed against the order dated 09.07.2004 passed by the Income Tax Appellate Tribunal, Delhi Bench ‘B’, New Delhi in I.T.A. No. 4432/Del/2000. The appellant is the assessee. The dispute relates to the Assessment Year 1998-1999. 2. The substantial questions of law raised in the appeal are as follows:

(a) Whether on the facts and circumstances of the case, the Tribunal erred in law in not appreciating the true construction of Section 9 (1)(ii) of the Act read with Explanation thereto?

(b) Whether on the facts and in the circumstances of the case, the Tribunal erred in holding that the “off period” salary was chargeable to tax in India despite the fact that the non-resident employee was not present in India during the “off period”?

(c) Whether on the facts and in the circumstances of the case, the Tribunal erred in not appreciating the salary paid for the “off period” when the employee technicians were physically not present in India and were required to make themselves available for training, on the spot demonstration, etc. as set out in the employment letter could be said to accrue or deemed to accrue in India so as to be taxable in India?

(d) Whether on the facts and circumstances of the case, the Tribunal erred in not appreciating that the salary paid to a non-resident employee under an employment contract executed outside India, for the “off period”, could be held liable to be paid on account of services rendered while the employee was in India?

(e) Whether on the facts and circumstances of the case, the Tribunal has misdirected himself in law in basing its conclusion on suspicions and surmises and irrelevant material on record?

(f) Whether on the facts and in the circumstances of the case, the finding arrived at by the Tribunal is perverse inasmuch as no reasonable person correctly informed of the position of law would come to such a conclusion?

3.

Though the appellant has raised different questions of law as quoted above, in substance there is only one question of law, i. e, whether the Tribunal erred in holding that ‘off period salary’ paid to the assessee was taxable under section 9 (1)(ii) of the Income Tax Act, 1961. In Commissioner of Income Tax- and another Vs. Sedco Forex International Drilling Co. Ltd. and connected cases reported in (2003) 264 ITR 320, a Division Bench of this Court held that the payment of salary for “off period” was income earned in India, i.e., for services rendered in India under Section 9(1)(ii) of the Income Tax Act, 1961 and that “off period salary” was taxable under section 9(1)(ii) of the Income Tax Act, 1961. 4. Following the above mentioned judgment of a Division Bench of this Court, the appeal is dismissed.

(J.C.S. Rawat, J.) (Cyriac Joseph, C.J.) 28.09.2005

28.09.

2005 A

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