{"id":248220,"date":"2005-11-17T00:00:00","date_gmt":"2005-11-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sedco-forex-international-drill-vs-commissioner-of-income-tax-on-17-november-2005"},"modified":"2015-10-30T22:49:15","modified_gmt":"2015-10-30T17:19:15","slug":"sedco-forex-international-drill-vs-commissioner-of-income-tax-on-17-november-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sedco-forex-international-drill-vs-commissioner-of-income-tax-on-17-november-2005","title":{"rendered":"Sedco Forex International Drill. … vs Commissioner Of Income Tax, … on 17 November, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sedco Forex International Drill. … vs Commissioner Of Income Tax, … on 17 November, 2005<\/div>\n
Author: Ruma Pal<\/div>\n
Bench: Ruma Pal, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (civil)  351-355 of 2005\n\nPETITIONER:\nSedco Forex International Drill. Inc. & Ors.\n\nRESPONDENT:\nCommissioner of Income Tax, Dehradun  & Anr.\n\nDATE OF JUDGMENT: 17\/11\/2005\n\nBENCH:\nRuma Pal & Tarun Chatterjee\n\nJUDGMENT:\n<\/pre>\n
J U D G M E  N T
\nWith
\nCivil Appeal Nos.375-426, 428-447, 462, 465-472,
\n 474-476, 478, 480-481, 483-484, 545, 502-511,
\n 513-521, 526-530, 534-544,546 of 2005<\/p>\n
RUMA PAL, J <\/p>\n
\tThe appellant has filed these appeals as the agent of its
\nemployees who are the assessees in the present case. The appellant
\nitself is a company which was incorporated in Panama.  It entered
\ninto a wet lease with the Oil and Natural Gas Commission (ONGC)
\nunder which the appellant agreed to supply oil rigs and the
\nemployees to man the rigs to enable ONGC to carry on offshore
\ndrilling within the territorial waters of this country.  The appellant also
\nentered into agreements (which were executed in the United
\nKingdom) with each of its employees who are residents of the United
\nKingdom. The schedule of work as specified in the agreements
\nenvisaged 35 days or 28 days work  in a foreign location (in this case
\nIndia) followed by 35 days or 28 days “field break” in the United
\nKingdom (UK).  “Field break” was defined in the agreements to
\ninclude, but was not limited to, undergoing training by attending
\nclasses at such places as may be specified, on the spot
\ndemonstration to update the knowledge in the latest techniques and
\nattending to the offshore drilling work on any project of the appellant
\nin any part of the world.  The agreements further provided that such
\nassignments would be obligatory and compulsory and that the
\nemployee would have no option to deny or reject the same.  The
\nalternative schedule of time at location and at field breaks was to be
\nrepeated continuously during the period of the agreements.  The
\nemployees were to be paid the same monthly salaries for the
\nalternating periods.\n<\/p>\n
\tThe issue is whether the salary of the employees of the
\nappellant payable for field breaks outside India would be subjected to
\ntax under Section 9(1)(ii) read with  the Explanation thereto in the
\nIncome Tax Act<\/a> 1961 (hereinafter referred to as ‘the Act’) for the
\nAssessment years 1992-93, 1993-94.\n<\/p>\n
 The Assessing Authority assessed the employees of the
\nappellant including the salary for the field breaks as part of the total
\nincome under Section 9<\/a> (1)(ii) of the Act.  The Commissioner of
\nIncome Tax dismissed the employees’ appeal.  The Tribunal however
\nheld that the addition of such salary was not justified and the same
\nwas deleted.  The Department’s appeal to the High Court was
\nallowed on the ground that the ‘Off period’ and ‘On periods’ formed
\nan integral part of the agreement between the appellant and its
\nemployees and that it was not possible to give separate tax
\ntreatment to the two periods.  It was further held that during the field
\nbreaks the employees had to remain fit and had to undergo
\ndemonstration and training and  all that had a nexus with the services
\nthe assessees had to render in India.  Construing Section 9(1)(ii)<\/a>, the
\nHigh Court rejected the submission that the phrase “income earned in
\nIndia” meant that in all cases where services were rendered  outside
\nIndia, the salary could not be deemed to accrue in India, ipso facto.
\nThe High Court held that the training during the period of field breaks
\nwas directly connected with the works on the rigs in India,  and as
\nsuch the salary for the ‘Off period’ was income “earned”  in India
\nwithin the meaning of the phrase in Section 9(1)<\/a> (ii) of the Act.    The
\nthird ground for reversing the view taken by the Tribunal was that the
\nassessment records showed that the employer company had paid the
\nsalary of the employees including salary for the ‘Off period’ out of the
\nincome of the Indian operations.\n<\/p>\n
Assailing the decision of the High Court, the employees,
\nthrough the appellant, have submitted that the High Court had not
\ntaken into account the statutory change effected to Section 9(1)(ii)<\/a>.  It
\nwas submitted that in 1999 the scope of the section was amended to
\ninclude salary for ‘Off periods’ outside India  for the first time with
\neffect from 1st April, 2000. It was submitted that the impugned
\ndecision in fact purported to give retrospective effect to the provisions
\nintroduced in 1999 to cover the assessment years in question.  It was
\nsubmitted that the scope of Section 9(1)(ii)<\/a> after its amendment in
\n1999 had been clarified by a circular issued by the Central Board of
\nDirect Taxes (CBDT) as being prospective and this was binding on
\nthe Department.  It was contended that in any event the provisions of
\nthe section must be construed in accordance with international
\nunderstanding and norms.  According to the appellant during the field
\nbreaks, its employees were kept on standby  in the UK for serving
\nanywhere in the world which was not necessarily in India.
\n\tAppearing on behalf of the respondents, the Additional Solicitor
\nGeneral submitted that the employees of the appellant company were
\npaid salary during the field breaks only as a consequence of and in
\nrelation to the services rendered by them during the period that they
\nactually worked in India.  It necessarily followed that the salary
\nreceived for the ‘Off period’ was taxable as arising out of services
\nrendered in India.  There was a reasonable nexus between salary
\nearned for the ‘Off periods’ and the services rendered in India.  It was
\nfurther submitted that the amendment to the Explanation to Section
\n9(1)<\/a> (ii) was brought about by the Finance Act<\/a> 1999 and was
\nretrospective since it was clarificatory.  It was also stated that the
\nissue whether a statute is to be construed as being retrospective, if it
\ndid not itself indicate either in terms or by necessary implication that it
\nwas to operate retrospectively, has been referred to a Constitution
\nBench.  As far as the CBDT Circular is concerned, it was said that it
\nwas not binding on the respondents.\n<\/p>\n
In our view, the opinion of the High Court is contrary to the
\nlegislative history, context and construction of Section 9(1)(ii)<\/a>. Under
\nSection 4(1)<\/a> of the Act the total income of the previous year of every
\nperson  is subject to income tax. Section 5(2)<\/a> defines the scope of
\ntotal income as far as non residents are concerned, “as all income
\nfrom whatever source derived which\n<\/p>\n
a)\tis received or deemed to be received in India by or on behalf of
\nsuch person or\n<\/p>\n
b)\taccrues or arises or is deemed to accrue or arise to him in
\nIndia in such year”.\n<\/p>\n
In other words it is the receipt or accrual in India, whether
\ndeemed or actual, which determines the taxability under the Act.
\nSection 9<\/a> of the Act defines income “deemed to accrue or arise in
\nIndia”.  By Clause (ii) of sub-section (1) of Section 9<\/a> “income which
\nfalls under the head ‘Salaries’ if it is earned in India” is included in
\nsuch income.  In 1980 the Gujarat High Court in Commissioner of
\nIncome-Tax vs. S.G. Pgnatale<\/a> :([1980] 124 ITR 391 held that the
\nwords ‘earned in India” occurring in Clause (ii) must be interpreted as
\n“arising or accruing in India”  and not “from service rendered in India”.
\nTherefore as long as the liability to pay the amount under the head
\n“salaries” arose in India, Clause (ii) could be invoked.  But if the
\nliability to pay arose out of India and the amount was payable outside
\nIndia, Clause (ii), as it stood then, could not  be invoked.
\nTo overcome this decision, Section 9<\/a> (1) (ii) was amended by
\nthe Finance Act<\/a>, 1983 with effect from 1.4.1979 to include an
\nExplanation to Section 9(1)(ii)<\/a> which read as follows:-
\n“ExplanationFor the removal of doubts, it is hereby
\ndeclared that income of the nature referred to in this
\nclause payable for service rendered in India shall be
\nregarded as income earned in India.”\n<\/p>\n
         Therefore with this Explanation, irrespective of where the
\ncontract was entered into or where the liability to pay arose or where
\nthe payment was actually received, if the service was rendered in
\nIndia, the salary for such service was exigible to tax  as income under
\nthe Act.\n<\/p>\n
The High Court proceeded on the incorrect hypothesis that the
\nfield breaks were limited to the training of the employees to render
\nthem more fit for service in India.  That was not what the agreements
\nbetween the appellant and its employees said and there was no
\nground for the High Court to have assumed that it was. The High
\nCourt also did not address itself to the other aspects of the field break
\nnamely the readiness of the employees for service anywhere at all.
\nThe employees in this case had not  in fact ‘served’ in India during
\nthe field break period but they earned the income in UK as UK
\nresidents the consideration for the salary being the undergoing of
\ntraining or updating of knowledge and being in a state of readiness to
\nserve anywhere at all.  The contract does not mention that the salary
\nwas for a well earned rest. That was  a presumption which the High
\nCourt raised but which was based on no evidence. Besides, the
\nclause in the contract relating to salary for service in India was
\ndistinct from the clause relating to payment of salary for field breaks.
\nThe first clause clearly fell within the extended meaning given to the
\nwords ‘earned in India’ in the main provision.  But the second clause
\nrelating to the salary paid by the appellants to its UK employees for
\nthe field break was not ‘earned in India’. Since it did not fall within the
\nphrase.  The phrase is part of the statutory fiction created by Section
\n9(1)<\/a>. There is no question of introducing a further fiction by extending
\nthe Explanation to include whatever has a possible nexus with
\nservice in India . Therefore the salary paid for the field breaks in the
\nUK was not for “service rendered in India” within the meaning of 1983
\nExplanation to Section 9(1)(ii)<\/a> of the Act.\n<\/p>\n
The High Court did not refer to the 1999 Explanation in
\nupholding the inclusion of salary for the field break periods in the
\nassessable income of the employees of the appellant. However the
\nrespondents have urged the point before us.\n<\/p>\n
\tIn  our view the 1999 Explanation could not apply to
\nassessment years for the simple reason that it had not come into
\neffect then. Prior to introducing the 1999 Explanation, the decision in
\nCIT vs. S.G. Pgnatale<\/a>  (supra) was  followed in 1989 by a Division
\nBench of the Gauhati High Court in Commissioner of Income Tax
\nvs. Goslino Mario<\/a>  reported in [2000] 241 ITR 314.  It found that the
\n1983 Explanation had been given effect from 1.4.1979 whereas the
\nyear in question in that case was 1976-77 and said :
\n“..it is settled law that assessment has to be made with
\nreference  to the law which is in existence at the relevant
\ntime.  The mere fact that the assessments in question
\nhas(sic) somehow remained pending on April 1, 1979,
\ncannot be cogent reason to make the Explanation applicable
\nto the cases of the present assessees.  This fortuitous
\ncircumstance cannot take away the vested rights of the
\nassessees at hand”.\n<\/p>\n
The reasoning of the Gauhati High Court  was expressly
\naffirmed by this Court in Commissioner of Income Tax vs. Goslino
\nMario<\/a>  [2000] 241 ITR 312 at 314]  These decisions are thus
\nauthorities for the proposition that the 1983 Explanation expressly
\nintroduced with effect from a particular date would not effect earlier
\nassessment years.\n<\/p>\n
In this state of the law, on 27th February, 1999 the Finance Bill,
\n1999 substituted the Explanation to Section 9<\/a> (1) (ii) (or what has
\nbeen referred to by us as the 1999 Explanation). Section 5<\/a> of the Bill
\nexpressly stated that  with effect from 1st April, 2000, the substituted
\nExplanation would read:\n<\/p>\n
“ExplanationFor the removal of doubts, it is hereby
\ndeclared that the income of the nature referred to in
\nthis clause payable for<\/p>\n
(a)\tservice rendered in India; and<\/p>\n
(b)\tthe rest period or leave  period which is
\npreceded and succeeded by services rendered
\nin India and forms part of the service contract
\nof employment, shall be regarded as income
\nearned in India.”\n<\/p>\n
The Finance Act<\/a> 1999 which followed the Bill incorporated the
\nsubstituted Explanation to Section (9)(1)(ii) without any change.
\nThe Explanation as introduced in 1983 was construed by the
\nKerala High Court in Commissioner of Income tax vs. S.R. Patton
\n[1992] 193 ITR 49, while following the Gujarat High Court’s decision
\nin  S.G. Pgnatale  (supra), to hold that the Explanation was not
\ndeclaratory but widened the scope of Section 9(1)(ii)<\/a>.  It was further
\nheld that even if it were assumed to be clarificatory or that it removed
\nwhatever ambiguity there was in Section 9(1)(ii)<\/a> of the Act, it did not
\noperate in respect of periods which were prior to 1.4.1979. It was held
\nthat since the Explanation came into force from 1.4.1979, it could not
\nbe relied on for any purpose for an anterior period.
\nIn the appeal preferred from the decision by the Revenue
\nbefore this Court, the Revenue did not question this reading of the
\nExplanation by the Kerala High Court, but restricted itself to a
\nquestion of fact viz., whether the Tribunal had correctly found that the
\nsalary of the assessee was paid by a foreign company.  This Court
\ndismissed the appeal holding it was a question of fact.
\n[Commissioner of Income tax vs. S.R. Patton (1998) 8 SCC 608].\n<\/p>\n
\t     Given this legislative history of Section 9(1)(ii)<\/a>, we can only
\nassume that it was deliberately introduced with effect from 1.4.2000
\nand therefore  intended to apply prospectively .  It was also
\nunderstood as such by the CBDT which issued Circular No. 779
\ndated 14th September, 1999 containing explanatory notes on the
\nprovisions of the Finance Act<\/a>, 1999 in so far as it related to direct
\ntaxes.  It said in paragraphs 5.2 and 5.3.\n<\/p>\n
5.2 The Act<\/a> has expanded the existing Explanation
\nwhich states that salary paid for services rendered in
\nIndia shall be regarded as income earned in India, so
\nas to specifically provide that any salary payable for
\nrest period or leave period which is both preceded and
\nsucceeded by service in India and forms part of the
\nservice contract of employment will also be regarded as
\nincome earned in India.\n<\/p>\n
5.3   This amendment will take effect from 1st April,
\n2000, and will accordingly, apply in relation to the
\nassessment year 2000-2001 and subsequent years”.\n<\/p>\n
\tThe Departmental understanding of the effect of the 1999
\namendment even if it were assumed not to bind the respondents
\nunder Section 119<\/a> of the Act, nevertheless affords a reasonable
\nconstruction of it, and there is no reason why we should not adopt it.
\n\tAs was affirmed by this Court in Goslino Mario  (supra), a
\ncardinal principle of the tax law is that the law to be applied is that
\nwhich is in force in the relevant assessment year unless otherwise
\nprovided expressly or by necessary implication. [See also:  Reliance
\nJute and Industries vs. CIT<\/a>  (1980) 1 SCC 139].  An Explanation to
\na statutory provision may fulfil the purpose of clearing up an
\nambiguity in the main provision or an Explanation can add to and
\nwiden the scope of the main section .  If it is in its nature clarificatory
\nthen the Explanation must be read into the main provision with effect
\nfrom the time that the main provision came into force .  But if it
\nchanges the law it is  not presumed to be retrospective irrespective of
\nthe fact that the phrase used are  ‘it is declared’ or ‘for the removal of
\ndoubts’.\n<\/p>\n
\tThere was and is no ambiguity in the main provision of Section
\n9(1)(ii)<\/a>.   It includes salaries in the total income of an assessee if the
\nassessee has earned it in India.  The word “earned” had been
\njudicially defined in  S.G. Pgnatale  (supra) by the High Court of
\nGujarat, in our view, correctly, to mean as income “arising or accruing
\nin India”.  The amendment to the section by way of an Explanation in
\n1983 effected a change  in the scope of that judicial definition so as to
\ninclude with effect from 1979, “income payable for service rendered in
\nIndia”.\n<\/p>\n
        When the Explanation seeks to give an artificial meaning
\n‘earned in India’ and bring about a change effectively in the existing
\nlaw and in addition is stated to come into force with effect from a
\nfuture date, there is no principle of interpretation which would justify
\nreading the Explanation as operating retrospectively.\n<\/p>\n
            Even if it were to be held that the 1999 Explanation  to
\nSection 9(1)(ii)<\/a> were applicable to the facts of the present case, it is
\ndoubtful whether in the facts of this case the activity of the employees
\nin the UK could be said to be “rest” period or “leave” period within the
\nmeaning of the words in Clause (b) of the 1999 Explanation.
\nHowever, it is not necessary to decide the issue as we are satisfied
\nthat the 1999 Explanation would not apply to the assessment years in
\nquestion.\n<\/p>\n
For the reasons aforesaid, the decision of the High Court is set
\naside and the appeals are allowed.  There will be no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sedco Forex International Drill. … vs Commissioner Of Income Tax, … on 17 November, 2005 Author: Ruma Pal Bench: Ruma Pal, Tarun Chatterjee CASE NO.: Appeal (civil) 351-355 of 2005 PETITIONER: Sedco Forex International Drill. Inc. & Ors. RESPONDENT: Commissioner of Income Tax, Dehradun & Anr. DATE OF JUDGMENT: 17\/11\/2005 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-248220","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSedco Forex International Drill. ... vs Commissioner Of Income Tax, ... on 17 November, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sedco-forex-international-drill-vs-commissioner-of-income-tax-on-17-november-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sedco Forex International Drill. ... vs Commissioner Of Income Tax, ... on 17 November, 2005 - 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