M.C.Agarwal, J. - (1.) THESE writ petitions in the name of foreign technicians have been preferred by the Bharat Heavy Electricals Limited, Hardwar (hereinafter referred to as "the BHEL"), and are directed against the orders dated February 18, 1994, passed by the Commissioner of Income-tax, Meerut, whereby he rejected the petitions of the petitioners under Section 264 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), praying that the assessment orders framed by the Income-tax Officer, Saharanpur, be modified to the effect that the taxable income of the assessee-petitioners was nil.
(2.) I have heard Sri Rajesh Kumar, learned counsel for the petitioners, and Sri R. R. Agarwal, learned standing counsel for the Income-tax Department. The matter in issue relates to the assessment year 1990-91 in Writ Petitions Nos. 532, 533, 534 and 535 of 1994 and to the assessment year 1989-90 in Writ Petitions Nos. 535 and 557 of 1994. All the aforesaid persons were Czechoslovakian technicians in the employment of Skoda Export, Czechoslovakia. Bharat Heavy Electricals Limited, Hardwar, had entered into an agreement with the Gujarat State Electricity Board for the setting up of two 60 M.W. reversible generation units at Khadana Hydro Project. For the execution of the said contract, it had engaged the services of the said Skoda Export who deputed its technicians for the erection and commissioning of the said units. An agreement dated November 12, 1984, was executed between BHEL and Skoda Export under which certain amounts were payable by BHEL to Skoda Exporl as consideration for the technicians deputed by it. The payment was to be made per technician. In addition, BHEL also provided them rent-free accommodation. The said agreement was approved by the Government of India, vide letter dated December 18, 1984. The aforesaid technicians had come and even gone back, returns of income were filed on their behalf by BHEL declaring nil income. However, before filing the returns certain amounts were paid by way of self-assessment tax. This was done by way of precaution to avoid any penalty in case any income was found to be taxable. The assessments of all the petitioners were completed by the Assistant Commissioner of Income-tax, Circle-I, Saharanpur, in the ' status of non-resident. The Assessing Officer brought to tax amounts paid by BHEL to Skoda Export as income from other sources holding that there is no relationship of employer-employee between the petitioners and BHEL. He also brought to tax the value of accommodation and also included the income-tax paid by BHEL in respect of each petitioner treating the same to be a perquisite. The petitioners filed revision petitions under Section 264 of the Act contending that they were non-resident technicians, no salary was received by them from BHEL, that the rent-free accommodation was not a perquisite and the income-tax paid by BHEL could not be added to the income and lastly that there was a Double Taxation Avoidance Agreement (hereinafter referred to as "the DTAA"), between India and Czechoslovakia and, therefore, the income of the petitioners could not be taxed in India. The Commissioner of Income-tax accepted the contention of the petitioners that the value of the rent-free accommodation could not be taxed. However, on other points the submissions of the petitioners were rejected. They have, therefore, filed the present writ petitions.
(3.) IT has been contended that in pursuance of the agreement between BHEL and Skoda Export, the latter raised invoices on BHEL for the technical services rendered and that the petitioners received salary from Skoda Export in Czechoslovakia and no amount was received by them from BHEL in India. IT is further stated that it was under mistaken advice that BHEL deposited tax on the amount relatable to each technician, even though, the technicians have not individually received any salary or remuneration from BHEL. IT has been contended that each of the petitioners was in India for a period of less than 182 days and by virtue of the DTAA they could not be taxed in India. IT has also been contended that there was no relationship between the petitioners and the BHEL. The respondents have filed identical counter-affidavits in all the writ petitions. It is stated that the return of income on behalf of the petitioners was filed which was signed by one S. N. Sharma, Manager (FP) BHEL, mentioning himself to be the agent of the assessee. Along with the return a computation chart of taxable income was also filed which was certified by N. P. Kohli, Senior Accounts Officer, BHEL, Hardwar. It is stated that no tax was deducted at source but income-tax was paid by self-assessment. It is contended that along with the returns of income, salary certificates were annexed which showed payment of salary to the foreign technicians by the BHEL, but during the assessment proceedings, it was stated through a letter dated June 8, 1992, that remuneration is paid to the technicians by Skoda Export, Czechoslovakia, who were not residents of India. It is averred in the counter affidavit that the Assessing Officer denied the benefit of the alleged double taxation agreement as tax had already been paid in India and the case of the assessee did not fall under the purview of the DTAA.;