M/S READING andBATES CO.AGENT MR. GISKE JOHN vs. COMMISSIONER OF INCOME TAX DEHRADUN

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ITA/142/2004HC UttarakhandUKHC01003868200428 September 20052 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the substantial question of law was 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. The Court noted that a Division Bench of the same High Court, in the case of Commissioner of Income Tax and another 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 Income Tax Act, 1961, and was therefore taxable. Following this precedent, the High Court dismissed the appeal. No specific finding was recorded on issues 5 and 6, nor were any issues expressly left undecided.

What were the facts?

The appellant, M/s Reading & Bates Drilling Co., acting as an agent for Mr. Giske John, filed an appeal against an order dated 07.07.2004 passed by the Income Tax Appellate Tribunal, Delhi Bench ‘G’, New Delhi. The appeal pertains to Assessment Year 1996-1997. 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 taxable 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, conversely, argued for its taxability.

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 in the circumstances, the Tribunal erred in holding that the 'off period' salary was chargeable to tax in India despite the non-resident employee not being present in India during the 'off period'? (Question of mixed law and fact, turning on Section 9(1)(ii)) 3. Whether, on the facts and in the 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 make themselves available for training or on-spot demonstration as per the employment letter, could be said to accrue or deemed to accrue in India so as to be taxable? (Question of mixed law and fact, turning on Section 9(1)(ii)) 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, turning on Section 9(1)(ii)) 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 in the circumstances, the finding arrived at by the Tribunal is perverse? (Question of law) Assessee's Contention: The 'off period' salary paid to a non-resident employee, who was not physically present in India during that period and whose employment contract was executed outside India, should not be taxable in India. The salary was for services rendered while the employee was outside India. Revenue's Contention: Not recorded in the judgment.

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. 142 of 2004 M/s Reading & Bates Drilling Co. as agent of Mr. Giske John … 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 07.07.2004 passed by the Income Tax Appellate Tribunal, Delhi Bench ‘G’, New Delhi in I.T.A. No. 1861/Del/2000. The appellant is the assessee. The dispute relates to the Assessment Year 1996-1997. 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 that 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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