M/S B.J.SERVICES CO.AS AGENT OF MR FABIJAN VRLEC. vs. INCOME TAX APPELLATE TRIBUNAL and ORS.

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ITA/66/2004HC UttarakhandUKHC01003836200405 September 20052 pages
AI SummaryDismissed

What did the High Court hold?

The High Court dismissed the appeal, following its own Division Bench judgment in Commissioner of Income Tax vs. Sedco Forex International Drilling Co. Ltd. (2003) 264 ITR 320. In that precedent, the Court had held that payment of salary for an "off period" was income earned in India, taxable under Section 9(1)(ii) of the Income Tax Act, 1961, for services rendered in India. The High Court found that the present case was squarely covered by this earlier decision. Therefore, the amount paid for the "off period" was considered income earned in India. The reasoning hinges on the interpretation of Section 9(1)(ii) as applied in the Sedco Forex case, which deemed "off period" salary taxable. The operative direction was to dismiss the appeal.

What were the facts?

The appellant, M/s B J Services Co. Middle East, acting as agent for Mr. Fabijan Vrlec, filed an appeal against an order dated January 29, 2004, passed by the Income Tax Appellate Tribunal (ITAT), Delhi Bench 'D'. The appeal pertains to the Assessment Year 1998-99. The core of the dispute involves the taxability of an amount paid for an "off period". The assessee contended that no services were rendered in India during this off period. The revenue's position, as reflected in the ITAT's order, is that this amount is taxable as income earned in India. The procedural history indicates that the matter reached the High Court after the ITAT's decision.

What were the issues?

1. Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in treating the amount paid for the "off period" as income earned in India, in view of the explanation to Section 9(1)(ii) of the Income Tax Act, 1961, when admittedly no service was rendered during the off period in India? 2. Whether the subsequent amendment to the explanation to Section 9(1)(ii) of the Income Tax Act, 1961, effective from April 1, 2000, which regards amounts paid for "off period" or leave period as income accrued in India only from that date, supports the assessee's contention that the payment for the Assessment Year 1998-99 should not be treated as income earned in India? Assessee's Contentions: The assessee argued that no services were rendered in India during the "off period" and pointed to the amendment to the explanation to Section 9(1)(ii) effective April 1, 2000, as evidence that such payments were only taxable from that date onwards. Revenue's Contentions: The revenue, as upheld by the ITAT, contended that the amount paid for the "off period" constituted income earned in India, relying on the existing provisions of Section 9(1)(ii). The judgment does not explicitly record the revenue's arguments beyond what is implied by the ITAT's decision.

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. 66 of 2004 M/s B J Services Co. Middle East As agent of Mr. Fabijan Vrlec, Vikas Centre, 2nd Floor, S.V. Road, Santacruz (W) Mumbai. … Appellant Versus 1. Income Tax Appellate Tribunal Delhi Bench ‘D’ New Delhi. 2. Commissioner of Income Tax (Appeals) Dehradun. 3. Assistant Commissioner of Income Tax, Special Circle, Dehradun … Respondents Mr. V.K. Bist, Senior Advocate/ Mr. A. Chatterjee, Advocate for the appellant. Mr. S.K. Posti, Advocate for the respondents. 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 29.01.2004 passed by the Income Tax Appellate Tribunal, Delhi Bench ‘D’, New Delhi in I.T.A. No. 33(Del) / 2000. The appellant is the assessee. The dispute relates to the Assessment Year 1998-99. 2. The substantial question of law raised in the appeal is as follows:

“Whether on the facts and in the circumstances of the case, Tribunal is legally justified in treating the amount paid for the “off period” as the income earned in India in view of the explanation to section 9(1)(ii) while admittedly no service has been rendered during off period in India and inasmuch as, the subsequent amendment made in the explanation w.e.f. 01.04.2000 shows that the amount paid for “off period” or leave period is regarded as the income accrued in India only w.e.f. 01.04.2000?”

3.

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) 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, this appeal is dismissed.

(J.C.S. Rawat, J.)

(Cyriac Joseph, C.J.)

16.09.

2005

16.09.

2005

A

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