Ita/32/2007 Of Soren Toft v. Commissioner Of Income Tax,Kochi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940 ITA.No. 21 of 2007 AGAINST THE ORDER/JUDGMENT IN ITA 18/COCH/2003 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 28.9.2006 APPELLANT/S:/APPELLANT/ASSESSEE: MR.PREBEN SMEDEGAAD JENSON,HTAS DENMARK, C/O.FERTILIZERS AND CHEMICALS TRAVANCORE LTD,, UDYOGAMANDAL. BY ADVS.SRI.E.K.NANDAKUMAR (SR.)SRI.ANIL D. NAIR RESPONDENT/S:/RESPONDENT/REVENUE: COMMISSIONER OF INCOME TAX,KOCHI. BY SRI.PKR MENON, SR. COUNSEL, GOI (TAXES) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, ALONG WITH ITA NOS.29, 32, 41, 44, 60/2007 AND 22/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940 ITA.No. 29 of 2007 AGAINST THE ORDER/JUDGMENT IN ITA NO.184/COCH/2006 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 28.9.2006 APPELLANT/S:/APPELLANT/ASSESSEE: MR.NIELS KRISTIAN SKAARUP JORGENSES,HTASDENMARK,C/O.FERTILIZERS AND CHEMICALS TRAVANCORE LTD.,UDYOGAMANDAL. BY ADVS.SRI.ANIL D. NAIRSRI.E.K.NANDAKUMAR (SR.) RESPONDENT/S:/RESPONDENT/REVENUE: COMMISSIONER OF INCOME TAX, KOCHI BY SRI PKR MENON, SR COUNSEL FOR GOI TAXES THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, ALONG WITH ITA NOS.21 & 22/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940 ITA.No. 32 of 2007 AGAINST THE ORDER/JUDGMENT IN ITA 185/COCH/2006 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 28-09-2006 APPELLANT/S:/APPELLANT/ASSESSEE: SOREN TOFTHTAS DENMARK, C/O.FERTILIZERS AND CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL. BY SRI.E.K.NANDAKUMAR (SR.)ADV. SRI.ANIL D. NAIR RESPONDENT/S:/RESPONDENT/REVENUE: COMMISSIONER OF INCOME TAX,KOCHI BY SRI.PKR MENON, SR.COUNSEL, GOI (TAXES) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, ALONG WITH ITA NOS.21 & 22/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940 ITA.No. 41 of 2007 AGAINST THE ORDER/JUDGMENT IN ITA 566/COCH/2004 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 28.9.2006 APPELLANT/S:/RESPONDENT/ASSESSEE: MR.LEIF BO OIGAARD,HTAS DENMARKC/O.FERTILIZERS AND CHEMICALS TRAVANCORE LTD.,, UDYOGAMANDAL. BY ADVS.SRI.E.K.NANDAKUMAR (SR.)SRI.ANIL D. NAIR RESPONDENT/S:/APPELLANT/REVENUE: COMMISSIONER OF INCOME TAX,KOCHI. SRI.PKR MENON, SR.COUNSEL, GOI (TAXES) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, ALONG WITH ITA NOS.21 & 22/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940 ITA.No. 44 of 2007 AGAINST THE ORDER/JUDGMENT IN ITA 493/COCH/2004 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 28.9.2006 APPELLANT/S:/RESPONDENT/ASSESSEE: PEDERSON FISHER PEDERTRAVANCORE LTD., UDYOGAMANDAL. HTAS DENMARK, C/O. FERTILIZERS AND CHEMICALS BY ADV. SRI.E.K.NANDAKUMAR (SR.)SRI.ANIL D. NAIR RESPONDENT/S:/APPELLANT/REVENUE: COMMISSIONER OF INCOME TAX,KOCHI. BY SRI.PKR MENON, SR.COUNSEL, GOI (TAXES) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, ALONG WITH ITA NOS.21 & 22/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940 ITA.No. 44 of 2007 AGAINST THE ORDER/JUDGMENT IN ITA 493/COCH/2004 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 28.9.2006 APPELLANT/S:/RESPONDENT/ASSESSEE: PEDERSON FISHER PEDERTRAVANCORE LTD., UDYOGAMANDAL. HTAS DENMARK, C/O. FERTILIZERS AND CHEMICALS BY ADV. SRI.E.K.NANDAKUMAR (SR.)SRI.ANIL D. NAIR RESPONDENT/S:/APPELLANT/REVENUE: COMMISSIONER OF INCOME TAX,KOCHI. BY SRI.PKR MENON, SR.COUNSEL, GOI (TAXES) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, ALONG WITH ITA NOS.21 & 22/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 26.10.2018, ALONG WITH ITA NOS.21 & 22/2007 AND CONNECTED IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940 ITA.No. 60 of 2007 AGAINST THE ORDER/JUDGMENT IN ITA 189/COCH/2006 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 28.9.2006 APPELLANT/S:/APPELLANT/ASSESSEE: MR.PETERSON LYE ERIK,TRAVANCORE LTD., UDYOGAMANDAL. HTAS DENMARK, C/O.FERTILIZERS AND CHEMICALS BY ADVS. SRI.E.K.NANDAKUMAR (SR.)SRI.ANIL D. NAIR RESPONDENT/S:/RESPONDENT/REVENUE: COMMISSIONER OF INCOME TAXKOCHI. BY SRI.PKR MENON, SR.COUNSEL, GOI (TAXES) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2018, ALONG WITH ITA NOS.21 & 22/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA Nos.21, 22/2007 & conn. ITA Nos.21, 22, 23, 24, 27, 28, 29, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 50 & 60 of 2007and 117 of 2008------------------------------------------- Dated this the 26[th] day of October, 2018 J U D G M E N T Ashok Menon, J. These are appeals filed by different assessees,all of them residents of Denmark, employed withFertilizers and Chemicals Travancore Limited (FACT Ltd.).They were employees of a foreign company, expert-technicians deputed to FACT Ltd. for proper performanceof the agreement the FACT Ltd. entered into with theiremployer; executed in the year 1993. Haldar Topsoe A/S(HTAS), a Company registered under the Laws of Denmarkand having its principal office at Denmark, in connectionwith the “processes and catalysts for production ofAmmonia by steam reforming of hydrocarbons” had agreed todepute technicians in their employment, experts in theprocesses. As per the terms of licence agreement forsetting up of the Ammonia Plant, FACT Ltd. was obliged topay to the assessees living allowance, and fullyfurnished accommodation for which an amount was charged ITA Nos.21, 22/2007 & conn. by FACT Ltd. That apart, income tax payable, i.e. chargedin India on the salaries of the persons deputed by HTAS,was also to be borne by FACT Ltd. It is an admitted factthat the assessees were all employed in India for morethan 183 days. The salaries were drawn by the assesseesfrom their parent Company-HTAS in Denmark and all thatthey got here, was the living allowance andaccommodation, apart from transportation facility etc;provided to them. 2.The Assessing Officer (AO) brought to taxthe salaries paid to these assessees by HTAS in Denmark,by virtue of the provisions of the Explanation to Section9(1)(ii) of the Income Tax Act, 1961 ('Act', for short),because the salaries paid in Denmark were for theservices rendered in India. The value of accommodationprovided and the income tax paid by FACT Ltd. were alsobrought to tax by the AO. In case of some of theassessees, regular assessment was made under Section143(3) of the Act, while in case of others, proceedingswere initiated under Section 263 by the Commissioner ofIncome Tax (CIT) as also by the AO, under Section 147. 2.The Assessing Officer (AO) brought to taxthe salaries paid to these assessees by HTAS in Denmark,by virtue of the provisions of the Explanation to Section9(1)(ii) of the Income Tax Act, 1961 ('Act', for short),because the salaries paid in Denmark were for theservices rendered in India. The value of accommodationprovided and the income tax paid by FACT Ltd. were alsobrought to tax by the AO. In case of some of theassessees, regular assessment was made under Section143(3) of the Act, while in case of others, proceedingswere initiated under Section 263 by the Commissioner ofIncome Tax (CIT) as also by the AO, under Section 147. 3.Appeals were filed by the assessees beforethe CIT (Appeals) in respect of the assessment orderspassed by the AO under Section 143(3) and under Section143(3) read with Section 147 as well as on the orders of ITA Nos.21, 22/2007 & conn. the CIT under Section 263. The appeals were all heard bythe different CIT (Appeals). Eventually, there werecontradictory orders. In some of the appellate orders,the CIT (Appeals) found that the salaries paid to theassessees in Denmark were not liable to be taxed, whilesome others were of the opinion that the salary earned bythe assessees in Denmark were liable to be taxed in Indiaby virtue of the Explanation to Section 9(1)(ii) of theAct. 4.Appeals were preferred by the Department aswell as by the assessees before the Income Tax AppellateTribunal, Cochin Bench, and vide the impugned commonorder in all the appeals, the Tribunal came to theconclusion that the salaries paid to the assessees inDenmark for services rendered in India were all liable tobe taxed in India. The value of perquisites likeaccommodation was excluded, which the Tribunal held,could not be brought to tax under Section 56(1) of theAct. The Tribunal was of the opinion that Section 10(6A)is not applicable to the assessees and therefore, theincome tax paid was rightly added on to the income of theassessees for computing the total income as their taxableincome. In view of the above, the appeals filed by boththe Revenue and the assessees were partly allowed. ITA Nos.21, 22/2007 & conn. -10- 5.Aggrieved by the impugned common order ofthe Tribunal, the assessees are before this Court.Following are the common questions of law that arise forconsideration in these appeals:- “(1) Whether the Tribunal was justified inholding that salaries received by thetechnicians in Denmark were taxable in Indiaunder Section 9(1)(ii) of the Act? (2)Whether the Tribunal was justified inholding that the income tax paid by FACT Ltd.was on the income at the hands of theassessees, considering Section 10(6A) of theAct?” 6.The learned counsel for the assessees andthe learned Senior Counsel, Government of India (Taxes)were heard. 7.It is the argument of the learned counselfor the assessees that there is no employer-employeerelationship between the assessees and FACT Ltd., asconfirmed by the Tribunal. In view of such finding, itwas not appropriate that the assessees/employees, whowere deputed as technicians by their employers inDenmark, were taxed in India for the salaries which weredrawn by them in Denmark. It would be apposite to readSection 9(1)(ii) of the Act, which is as follows: “9Income deemed to accrue or arise in India-(1)The following incomes shall be deemed toaccrue or arise in India-xxxxxxxxx(ii) income which falls under the head“Salaries”, if it is earned in India.Explanation:- For the removal of doubts,it is hereby declared that the income of thenature referred to in this clause payable for (a)service rendered in India; and(b)the rest period or leave periodwhich is preceded and succeeded by servicesrendered in India and forms part of theservice contract of employment,shall be regarded as income earned in India;” 8.The Explanation to Section 9(1)(ii) of the “9Income deemed to accrue or arise in India-(1)The following incomes shall be deemed toaccrue or arise in India-xxxxxxxxx(ii) income which falls under the head“Salaries”, if it is earned in India.Explanation:- For the removal of doubts,it is hereby declared that the income of thenature referred to in this clause payable for (a)service rendered in India; and(b)the rest period or leave periodwhich is preceded and succeeded by servicesrendered in India and forms part of theservice contract of employment,shall be regarded as income earned in India;” 8.The Explanation to Section 9(1)(ii) of the Act was brought on to the statute book by Finance Act,1983 w.e.f. 1.4.1979. A reading of the above Explanationmakes it adequately clear that the income falling underthe head “Salaries” would be the income earned in Indiafor the services rendered in India, and as per theprovisions of the Act, any income that is earned inIndia, is liable to be taxed. The Tribunal has indetail, considered the Double Taxation AvoidanceAgreement between India and Denmark, and in particularArticle 16 thereof, to arrive at a conclusion that thesalaries paid for the services rendered in India would betaxable, though paid in Denmark. Hence, we do not findany reason to interfere with the finding of the Tribunal,insofar as bringing to tax the salaries of the assessees received by them in Denmark for the services rendered inIndia, is concerned. 9.The next question that arises for consideration is whether the tax liability borne by FACTLtd. in respect of these assessees during theirdeputation in India is income at the hands of theassessees. The Tribunal has referred to Article 7 of theLicence Agreement between HTAS, Denmark and FACT Ltd..As per that agreement, FACT Ltd. has agreed to pay Indianincome tax leviable on the individual salaries of HTAS'sexpatriate personnel deputed to India under theagreement. By virtue of the terms of the agreement, itwas the contractual liability of FACT Ltd. to pay incometax in respect of the assessees. Relying on the decisionof the Honourable Supreme Court in (1993) 200 ITR 483(SC) [Emil Webber v. CIT], it was rightly observed by theTribunal that the income tax so paid by FACT Ltd. byvirtue of the agreement would come within the purview ofSection 56(1) as income from other sources, because itwould include income of every kind and could not beexcluded from the total income under the Act chargeableto income tax. The assessees have urged that the incometax so paid by FACT Ltd. could not be brought to theincome to be taxed by virtue of the provisions of Section10(6A) of the Act. Exclusions under the aforesaid Section is with regard to foreign company deriving incomeby way of royalty or fees received by Government of Indiain pursuance of agreement by the foreign company and theGovernment. The Tribunal has considered this issue andhas rightly come to the conclusion that the assessees areindividual assessees and not a foreign company, so as toexclude their income from the purview of taxation. We find no reason, whatsoever, to interfere withthe orders passed by the Tribunal. The questions of laware all answered in favour of the Revenue and against theassessees. All the Income Tax Appeals are rejected. Nocosts. Sd/- K.VINOD CHANDRAN JUDGE Sd/- ASHOK MENON JUDGE APPENDIX OF ITA 21/2007 APPELLANT'S EXHIBITS: ANNEXURE A:TRUE COPY OF THE ASSESSMENT ORDER DATED 13.03.2000 PASSED BY THE ASST.COMMR. OF INCOME TAX, ERNAKULAM. ANNEXURE B:TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 26.03.2002, NO.CIT/CHN/TBR-16/2001-02. ANNEXURE C:TRUE COPY OF THE ORDER OF INCOME TAX APPELLATE TRIBUNAL, KOCHI DATED 28.09.2006. jg APPENDIX OF ITA 29/2007 APPELLANT'S EXHIBITS: ANNEXURE A: TRUE COPY OF THE ASSESSMENT ORDER DATED 07.03.2005 PASSED BY THE ASST.COMMR. OF INCOME TAX, ERNAKULAM. ANNEXURE B: Sd/- K.VINOD CHANDRAN JUDGE Sd/- ASHOK MENON JUDGE APPENDIX OF ITA 21/2007 APPELLANT'S EXHIBITS: ANNEXURE A:TRUE COPY OF THE ASSESSMENT ORDER DATED 13.03.2000 PASSED BY THE ASST.COMMR. OF INCOME TAX, ERNAKULAM. ANNEXURE B:TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 26.03.2002, NO.CIT/CHN/TBR-16/2001-02. ANNEXURE C:TRUE COPY OF THE ORDER OF INCOME TAX APPELLATE TRIBUNAL, KOCHI DATED 28.09.2006. jg APPENDIX OF ITA 29/2007 APPELLANT'S EXHIBITS: ANNEXURE A: TRUE COPY OF THE ASSESSMENT ORDER DATED 07.03.2005 PASSED BY THE ASST.COMMR. OF INCOME TAX, ERNAKULAM. ANNEXURE B: TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 15.12.2005, NO.ITA-29/R-2/E/CIT-IV/05-06.(AY-1998-99) ANNEXURE C: TRUE COPY OF THE ORDER OF INCOME TAX APPELLATE TRIBUNAL, KOCHI DATED 28.09.2006. jg APPENDIX OF ITA 32/2007 APPELLANT'S EXHIBITS: ANNEXURE A:TRUE COPY OF THE ASSESSMENT ORDER DATED 07.03.2005 PASSED BY THE ASST.COMMR. OF INCOME TAX, ERNAKULAM. ANNEXURE B: TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 15.12.2005, NO.ITA-28/R-2/E/CIT-IV/05-06.(AY-1998-99) ANNEXURE C:TRUE COPY OF THE ORDER OF INCOME TAX APPELLATE TRIBUNAL, KOCHI DATED 28.09.2006. jg APPENDIX OF ITA 41/2007 APPELLANT'S EXHIBITS: ANNEXURE A:TRUE COPY OF THE ASSESSMENT ORDER DATED 24.1.2003 PASSED BY THE ASST.COMMR. OF INCOME TAX, ERNAKULAM. ANNEXURE B: TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 30.3.2004, NO.ITA-96/R-2/E/CIT-V/2002-03.(AY-1997-98). ANNEXURE C: TRUE COPY OF THE ORDER OF INCOME TAX APPELLATE TRIBUNAL, KOCHI DATED 28.09.2006. jg APPENDIX OF ITA 44/2007 APPELLANT'S EXHIBITS: ANNEXURE A:TRUE COPY OF THE ASSESSMENT ORDER DATED 24.1.2003 PASSED BY THE ASST.COMMR. OF INCOME TAX, ERNAKULAM. ANNEXURE B: TRUE COPY OF THE ORDER OF THE RESPONDENT DATED 26.2.2004, NO.ITA-98/R-2/E/CIT-II/02-03.(AY-1997-98) ANNEXURE C:TRUE COPY OF THE ORDER OF INCOME TAX APPELLATE TRIBUNAL, KOCHI DATED 28.09.2006. jg APPENDIX OF ITA 60/2007 APPELLANT'S EXHIBITS: ANNEXURE ATRUE COPY OF THE ASSESSMENT ORDER DATED 7.3.2005 PASSED BY THE ASST. COMMR. OF INCOME TAX, ERNAKULAM. ANNEXURE BTRUE COPY OF THE ORDER OF THE RESPONDENT DATED 15.12.2005, A.NO.ITA.32/R-2/E/CIT-IV/05-06 (A.Y.1998-99)ANNEXURE CTRUE COPY OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, KOCHI DATED 28.9.2006. jg