Decided on May 20,1994



R.M. Mehta, Accountant Member - (1.) ALL these appeals are directed against separate orders passed by the Commissioner of Income-tax (Appeals) whereby he has upheld the action on the part of the Income-tax Officer in subjecting to tax the salary paid to the assessees by their employer for the 28 days off periods when they were physically off the rigs installed in Indian coastal waters.
(2.) To set out the brief facts of the case, the appellants are foreign technicians, who have been deputed by their foreign employer, namely, M/s. Atwood Oceanics International S.A., to work on the rigs situated off the Indian coast pursuant to the contract entered into between the said foreign employer and ONGC. In the course of the assessment proceedings it was contended on behalf of the appellants that the salary for the off periods when they were off the rigs being physically outside India and the said salary having been paid outside India was not taxable in India. The aforesaid claim was rejected by the Income-tax Officer primarily on the ground that the 28 days off period was related to the period of 28 days when the appellants were working on the rigs in the Indian waters and the said off period was an outcome of the duties performed on the rigs. In other words, the view taken by the Income-tax Officer was that even if the appellants were outside India for sometime during the contract period and the said period outside India was utilised by the parent company for some other work outside India, the salary pertaining thereto would become taxable in India as the service contract between the appellants and the parent company related to the "Indian job". In the final analysis, the Income-tax Officer included in the assessments of each of the appellants the off period salary which had been claimed as exempt. On further appeals the Commissioner of Income-tax (Appeals) upheld the view taken by the Income-tax Officer on identical grounds and passed separate orders in this respect.
(3.) IT is in the aforesaid circumstances that the present appeals have come up for hearing before the Tribunal. We have heard both the parties at considerable length in respect of the common ground raised in all these appeals. The learned Counsel for the appellants submitted that the issue stood covered by numerous decisions of the Tribunal in the case of various other employees/technicians of M/s. Atwood Oceanics Ltd. and there being no other distinguishing feature on the record vis-a-vis the present appeals the Tribunal be pleased to follow the earlier orders. IT was further stated that there had been two decisions of the Tribunal which had taken a view to the contrary and these being the appeals of certain employees of Scan Drilling Co. in IT Appeal No. 5639 (Delhi) of 1990 dated 29-12-1992 and the other being the SMC decision in the case of one of the technicians of Halliburton Offshore Services Inc. in [IT Appeal No. 8051 (Delhi) of 1991, dated 10-6-1993]. The learned Counsel, however, hastened to add that the aforesaid decisions could not be applied to the facts of the present appeals as the terms of the contract were quite different. For this proposition, she invited our attention to the observation of the Tribunal recorded in para 5 of its order in respect of the technicians of Scan Drilling Co. (supra) and which referred to the order of the Tribunal in the case of one of the employees of M/s. Atwood Oceanics International, namely, G. Brian [IT Appeal No. 4465 (Delhi) of 1987, dated 30-3-1987]. According to her the observations of the Tribunal were to the effect that the facts in the case of the said Mr. G. Brian were different to those of the employees/technicians of Scan Drilling Company. IT was stated that the aforesaid observation of the Tribunal had not been reversed although the final conclusion of the Tribunal in the case of Scan Drilling Co. (supra) went against the assessees.;

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