Director of Income Tax (International Taxation) vs Sedco Forex International Drilling Inc. and Others

Barin Ghosh, C.J.—Considering the averments made in Delay Condonation Appln. No. 5865 of 2010 in preferring the IT Appeal No. 27 of 2010 and being satisfied that sufficient grounds have been made out for delay, we allow the said application. By consent of the parties, IT Appeal Nos. 25 of 2010, 26 of 2010, 28 of 2010, 29 of 2010 and 22 of 2011 are treated on the day''s list.

In IT Appeal No. 22 of 2011, since the respondents are present, we have proceeded, as if service has been effected upon the respondents.

The sole question involved in these appeals is :

Whether the tax paid by the employer on the salaries/remunerations of the employees would constitute non-monetary benefits and, as such, the same would be exempted under s. 10(10CC) of the IT Act ?

The facts, to which there is no dispute, are that the employer paid salaries/remunerations to its employees. In addition to that, the employer paid to the IT Department, the amount of tax payable by the employees on the salaries/remunerations that the employees received. The Department contended that the employees are obliged to pay tax on the amount of such income tax paid by the employer on account of the employees to the IT Department. The employees contended that the same being perquisite within the meaning of s. 17(2) of the IT Act (hereinafter referred to as the Act), the same is exempted in view of s. 10(10CC) of the Act. This dispute went before the Tribunal. The Tribunal dealt with the issue by looking into s. 10(10CC) of the Act, s. 17(2) of the Act and a Full Bench judgment of the Tribunal, rendered in the case of RBF Rig Corpn. LLC (RBFRC) vs. Asstt. CIT (2008) 113 TTJ (Del)(SB) 143 : (2008) 1 DTR (Del)(SB)(Trib) 203 : (2007) 297 ITR 228 (Del)(AT). There is no dispute that in RBF Rig Corporation case (supra), a substantial question of law was decided. Despite decision of such an important question of law, the IT Department did not take the matter higher up. However, by presenting these appeals, the Department has questioned, in fact, the validity of the law declared by the Tribunal in RBF Rig Corporation case (supra).

Sec. 200 of the Companies Act, 1956 prohibits companies from paying to any officer or employee thereof any remuneration free of income tax. Tax-free remuneration is one thing and payment of remuneration as well as tax payable thereon is another thing.

In that background, s. 10(10CC) of the Act provides that in the case of an employee, being an individual deriving income in the nature of a perquisite not provided for by way of monetary payment, within the meaning of cl. (2) of s. 17 of the Act, the tax on such income actually paid by his employer, at the option of the employer, on behalf of such employee, notwithstanding anything contained in s. 200 of the Companies Act, 1956 shall be excluded in computing total income of a previous year of such an employee. Therefore, despite prohibition contemplated in the Companies Act for payment of tax free remuneration to an employee, s. 10(10CC) of the Act has provided that notwithstanding anything contained in the Companies Act, an employee shall be entitled to exclude his income by way of remuneration/salary provided the same is not a monetary payment to him and is also provided as perquisite in cl. (2) of s. 17 of the Act and thereby has acknowledged that remuneration plus tax payable thereon is permissible.

Tax paid on account of the employee is certainly a monetary payment, but the only difference is that the same is not paid to the employee, but on his account to the IT Department. The only question is, whether such a payment has been considered as perquisite in cl. (2) of s. 17 of the Act. Sec. 17(2) provides as follows :

Perquisite includes.....any sum paid by the employer in respect of any obligation which, but for such payment, would have been payable by the assessee.....

According to s. 17(2) of the Act, perquisite includes many a things, including the one mentioned above. It includes value of rent-free accommodation, the value of any concession in the matter of rent, value of any benefit or amenity granted or provided free of cost, any sum payable by the employer on account of provident fund or on account of superannuation fund or towards the value of any other benefits, etc. Therefore, one of the perquisites, as mentioned in s. 17(2) of the Act, is any sum paid by the employer in respect of any of the obligation, which but for such payment, would have been payable by the assessee, i.e. the employee.

There is no dispute that the employer has entered into agreements with the employees and thereby has taken over an obligation to pay income tax payable by the employees. If the employer was not obliged to pay such income tax, the same would have been payable by the employees in question. Such payment, as has been provided in s. 10(10CC), is notwithstanding anything contained in s. 200 of the Companies Act, 1956. Therefore, the payment of tax to the IT Department on account of salaries/remunerations of the employees not by way of monetary payment to the employees concerned, but for or on their account to the IT Department and the same being one of the perquisites included in cl. (2) of s. 17 of the Act, such payment was to be excluded from the income of the employees. The same, having been directed to be done by the Tribunal, while we answer the question as above in favour of the assessee, refuse to interfere with the judgments and orders of the Tribunal assailed in these appeals. Learned counsel for the appellant submitted that the State Government has exempted the IT Department from paying fees on appeals.