2018 (7) TMI 1978 - HC - Income Tax

Cancellation of substantive assessment - protective assessment against FACT was sustained - taxability of salary / income at the hands of the foreign technicians - income from other source - HELD THAT - On the interest income obtained on such refund being made by the Department a substantive assessment was made on the foreign technicians and a protective assessment on FACT. In first appeal the protective assessment against FACT was sustained but the substantive assessment made against the foreign technicians were set aside. The revenue very strangely filed an appeal from the protective assessments being sustained. No appeal was filed from the order cancelling the substantive assessments. What is to be noticed in the present case is that the protective assessment as against the FACT survives even now and the demand could be made against the said assessee. In such circumstances there could be found no stakes involved in the appeal before the Tribunal since the revenue could have as well satisfied the demand from the assessee Company. In such circumstances we do not think any question of law arises from the order of the Tribunal and hence we reject the appeals.

Issues:
1. Delay in filing the appeal against the Tribunal order.
2. Tax treatment of salary paid to foreign technicians.
3. Assessment and refund process.
4. Appeal against protective assessment on FACT.
5. Decision regarding substantive assessment on foreign technicians.
6. Direction to approach the Committee on Disputes (COD).
7. Abandonment of remedy and the effectiveness of COD.
8. Dismissal of appeals against cancellation of substantive assessments.
9. Comparison with a Supreme Court order regarding delays in considering appeals.
10. Assessment of stakes involved in the appeal before the Tribunal.

The judgment involves appeals against the Tribunal order declining to condone the delay in filing the appeal. The case pertains to foreign technicians employed by a public sector undertaking whose salary was taxed as income. Upon a court judgment, the income was reclassified, leading to substantial refunds. A protective assessment was made on the employer but set aside for the technicians. The revenue appealed the protective assessment but not the cancellation of substantive assessments. The Tribunal directed the Department to approach the COD for resolution. However, the COD was later deemed ineffective. An appeal was filed against the cancellation of substantive assessments, which was dismissed due to delay and unsatisfactory explanation. Citing a Supreme Court order, the High Court emphasized the lack of stakes involved in the appeal since the demand could be satisfied by the employer. Consequently, the High Court rejected the appeals, finding no legal question arising from the Tribunal's order.

In the first issue, the delay in filing the appeal against the Tribunal order is highlighted. The High Court considered the explanation for the delay unsatisfactory, leading to the dismissal of the appeals against the cancellation of substantive assessments. This decision was influenced by a Supreme Court order emphasizing the consideration of merits despite delays when significant stakes are involved. However, the High Court found no substantial stakes in the present case due to the employer's ability to satisfy the demand, resulting in the rejection of the appeals.

Regarding the tax treatment of the salary paid to foreign technicians, the Court found that the income should be treated as income from other sources rather than taxed as salary. This reclassification led to substantial refunds, with one assessee receiving over Rs. 50,00,000 and the other over Rs. 1,66,00,000. The refunds were made to the employer since the tax liability was fulfilled by them, indicating the unique nature of the case.

The issue of the assessment and refund process was crucial in this judgment. Following the court's decision on the income classification, the assessment was redone, necessitating significant refunds to the foreign technicians. The employer was responsible for the tax liability and received the refunds, showcasing the financial implications of the reclassification on both parties.

The judgment also addressed the appeal against the protective assessment on the employer. While the protective assessment was sustained in the first appeal, the substantive assessments on the foreign technicians were set aside. The revenue's decision to appeal the protective assessment but not the substantive assessments raised questions regarding the legal strategy and the stakes involved in the subsequent appeals.

The Court also delved into the direction to approach the COD for dispute resolution. Initially, the Department was instructed to seek resolution from the COD, but later this directive was dropped. The abandonment of this remedy and the subsequent ineffectiveness of the COD, as highlighted by a Supreme Court precedent, added complexity to the case and influenced the Court's decision-making process.

In analyzing the stakes involved in the appeal before the Tribunal, the High Court compared the situation to a Supreme Court order emphasizing the consideration of significant stakes in delayed appeals. The Court concluded that since the demand could be satisfied by the employer, there were no substantial stakes in the appeal before the Tribunal, leading to the rejection of the appeals against the Tribunal's order.

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