TMI Blog1995 (12) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 537 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter 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. The first point that arises in these writ petitions is whether the aforementioned foreign technicians cannot be taxed in India because of the DTAA between India and Czechoslovakia. A copy of the agreement has been placed as annexure " 8 " to the writ petition and is not challenged. Clauses (1) and (2) of article 15 of the agreement stand as under : "1. Subject to the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State, if the conditions mentioned in sub-clauses (a), (b) and (c) are fulfilled. Admittedly, in the cases of the present petitioners they are all residents of Czechoslovakia and have been assessed in the status of non-resident. Under section 6(1)(a) an individual is said to be resident in India in any previous year if he is in India in that year for a period or periods amounting in all to 182 days or more, the petitioners having been treated by the Assessing Officer as non-resident. It means that none of them was in India for a period of 182 days or more. The petitioners denied having received any remuneration from BHEL and thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emuneration shown to be borne by such permanent establishment. Therefore, the income of the foreign technicians could not be taxed in India by virtue of article 15 of the DTAA. Before the Commissioner of Income-tax, a certificate was produced showing the period of stay in India of each of the petitioners. The Commissioner has not believed it on the ground that it was not shown as to in what circumstances and for what purpose the said paper was given by some Executive Engineer of Gujarat State Electricity Board. It was not necessary for the petitioners to produce any certificate before the Commissioner of Income-tax because their status as non-resident had already been accepted by the Assessing Officer in the assessment order itself and it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive countries and they are not interested in the matter and, therefore, these writ petitions by them are not maintainable. This contention is not tenable. Under section 163 of the Act, a non-resident can be assessed through an agent. BHEL was, in terms of the agreement with Skoda Export, under obligation to pay all taxes leviable on Skoda or its technicians. It is for this reason that BHEL put itself in the position of an agent of the petitioners and paid the tax and filed the returns. The Department did not object. Therefore, it cannot now say that BHEL cannot maintain these petitions on behalf of the foreign technicians. In effect BHEL is the real assessee and the petitioner. For the above reasons, the Assessing Officer as well as the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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