Calcutta H.C : Whether a technician deputed by the foreign company under an Indian company or local authority on certain terms and conditions will be treated as an employee of the Indian company or the foreign company for the purpose of assessment of his salary paid by the Indian company in India and will be taxed under the IT Act, 1961 ?

DIPAK KUMAR SEN, J.:

In this application, the CIT, West Bengal- I, Calcutta, seeks a certificate that the judgment and order dt. 5th Aug, 1986, in IT Ref. No. 317 (sic) of 1977 involves substantial questions of law and that the same is a fit case for appeal to the Supreme Court. The questions which are stated to arise from the said judgment have been set out in the petition as follows :

” (i) Whether a technician deputed by the foreign company under an Indian company or local authority on certain terms and conditions will be treated as an employee of the Indian company or the foreign company for the purpose of assessment of his salary paid by the Indian company in India and will be taxed under the IT Act, 1961 ?

(ii) Whether a foreign technician who declares before the Government of India that he was an employee of an Indian company, that his service would be performed in India and that he had necessary qualifications to get the exemption as a technician under the Act and that he enjoyed the exemption during his last visit to India, can still claim that he was not an employee of the Indian company for the purpose of the IT Act, 1961 ?”

2. The question which was before this Court in the said reference was as follows :

“Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee remained an employee of Fuji Electric Co. Ltd. and did not become an employee of the West Bengal State Electricity Board during the previous year relevant to the asst. yr. 197374 ?”

3. The reference was disposed of by following a judgment delivered in IT Ref. No. 329 of 1977— CIT vs. West Bengal State Electricity Board (1986) 56 CTR (Cal) 292 : (1987) 166 ITR 507 (Cal), in the case of the same assessee for and on behalf of another foreign technician on the same day as the judgment involved herein. It was recorded in the said jugdment in IT Ref. No. 329 of 1977 that the question referred did not involve either the taxability of the amount earned by the foreign technician while working in India nor the method of grossing up of income on the basis of the tax that had been paid by somebody else.

4. The said reference was disposed of on the short ground that there was sufficient evidence before the Tribunal to come to the conclusion that the foreign technician was not an employee of the West Bengal State Electricity Board and that this Court would not interfere with the conclusion of the Tribunal on a reappreciation of the evidence. The judgment in the instant case has followed the other judgment.

5. In our view, no substantial or any question of law arises from the judgment in this reference.

6. The application is dismissed.

7. There will be no order as to costs.

SHYAMAL KUMAR SEN, J.:

I agree.

[Citation : 173 ITR 579]