M/S B.J.SERVICES CO. AS AGENT OF KRASRIMIR BATCHOV vs. INCOME TAX APPELLATE TRIBUNAL and ORS.

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ITA/57/2004HC UttarakhandUKHC01003827200405 September 20052 pages
AI SummaryDismissed

What did the High Court hold?

The High Court dismissed the appeal, following its own previous judgment in Commissioner of Income Tax and another Vs. Sedco Forex International Drilling Co. Ltd. and connected cases reported in (2003) 264 ITR 320. In that precedent, a Division Bench of the Court had held that payment of salary for the 'off period' constituted 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. The High Court found no reason to deviate from this established legal position. The operative direction was to dismiss the appeal, upholding the ITAT's order.

What were the facts?

The appeal was filed by M/s B J Services Co. Middle East, acting as the agent of Mr. Krassimir Batchev, against an order dated January 29, 2004, passed by the Income Tax Appellate Tribunal (ITAT), Delhi Bench 'D'. The dispute pertains to Assessment Year 1998-99. The assessee is M/s B J Services Co. Middle East (agent) and Mr. Krassimir Batchev (principal). The respondents are the ITAT, Commissioner of Income Tax (Appeals), and Assistant Commissioner of Income Tax. The procedural history involves an appeal to the High Court against the ITAT's order.

What were the issues?

1. Whether, on the facts and in the circumstances of the case, the Tribunal is 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, despite no services being rendered in India during the 'off period'? 2. Whether the subsequent amendment to the explanation to Section 9(1)(ii) effective from April 1, 2000, which regards 'off period' or leave period payments as income accrued in India only from that date, supports the assessee's contention? Assessee's contention: The amount paid for the 'off period' should not be treated as income earned in India as no services were rendered in India during that period. The assessee also relies on the amendment to Section 9(1)(ii) effective from April 1, 2000, which clarifies that 'off period' payments are taxable from that date. Revenue's contention: The revenue's arguments are not explicitly 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. 57 of 2004 M/s B J Services Co. Middle East as agent of Mr. Krassimir Batchev, 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. 41/ 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.

“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.)

15.09.

2005

15.09.

2005 A

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