TaxTMI 
TaxTMI 
2006 (8) TMI 280
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....the Assessing Officer), passed on 6-1-2003, it is seen that the assessee's status during the relevant previous year was Not Ordinarily Resident (NOR). The assessee received salary amounting to Rs. 45,29,212 and bonus amounting to Rs. 9,83,246 totalling to Rs. 55,12,458 in the relevant previous year. He also was given rent-free accommodation and the perquisite value was determined at Rs. 9,23,558. The assessee spent 124 days outside India. Therefore, in the return of income, salary for 124 days, computed on proportionate basis, was excluded from the total income. In the course of assessment proceedings, it was pointed out that the assessee was employed as a news correspondent of NHK, Japan Broadcasting Corporation (NHK). As per terms of employment, between the assessee and the NHK, he was appointed bureau chief of Delhi office with effect from 18-7-1998. His main job was to gather news and reports and convey them to NHK. The employment terms also provided that NHK may assign him other duties from time to time. Therefore, it was argued that the income of the assessee for the period of his stay outside India was not taxable in India. However, the Assessing Officer did not accept this ....
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....ned whether the decisions rendered in the decided cases have facts more or less identical to the facts of this case. He referred to pages 12 and 13 of paper book-1 filed by the assessee, containing Assignment Terms, which describe the job functions of the assessee. These functions are reproduced below for the sake of ready reference: "(1) In connection with the news gathering of operations of NHK-Japan Broadcasting Corporation's News Bureau Office at New Delhi, the employee's duties may include, without limitation, the investigating, writing, preparing and reporting of news of the Southern Asia, including India and the neighbouring countries, for delivery on air, the direction and supervision of such news gathering; ensuring the effective and efficient operation of the Bureau; and such other services as NHK-Japan Broadcasting Corporation may expect from time to time in the ordinary course of duties. (2) However, the employee may be required by NHK-Japan Broadcasting Corporation to go on other assignments from time to time to any part of the world depending on exigencies and that further the employee may be reassigned to other News Bureaus of NHK-Japan Broadcasting Corporat....
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...., the contention of the learned DR was that the primary place of duty of the assessee was New Delhi and he was governed by fiscal laws of India. Therefore, in absence of any assignment to any other part of the world arising on any exigencies, the assessee continued to be employed in the Delhi office and his visits to other countries were incidental to his employment in New Delhi. 4.4 The learned DR referred to page-6 of the paper book which furnishes the details of the visits of the assessee outside India. For ready reference, the details are reproduced below: Summary of Number of days spent outside India for official purpose ---------------------------------------------------------- Travel dates Number of days Place From To outside India ---------------------------------------------------------- 2-5-2001 7-5-2001 4 Nepal ----....
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....n the Muslim world and a sizable population of Muslims reside in India. Therefore, after he visited Nepal for four days and Bangkok for six days in January & February, 2002, which was part and parcel of his activity of gathering news in South Asia. Therefore, his contention was that all the visits abroad were undertaken in connection with news gathering in India. Coming to the issue whether the assessee was working for the business controlled or profession set up in India, the learned DR pointed out that there is no evidence on record that his activities were controlled from outside India. The only evidence on record is that he was outside India for 124 days. In any case, the NHK was registered with Press Bureau of India and the activities in South Asia were controlled from Delhi office. 4.6 Coming to the legal issues, the learned DR relied on the decision of the Hon'ble Supreme Court in the case of Moosa S. Madha and Azam S. Madha v. CIT [1973] 89 ITR 65. In that case, the assessee was in India for 365 days during four years preceding 1947, and the assessee was in India during 1947 for a period of two months. The Hon'ble Court pointed out that the onus was on the assessee to pr....
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....ation of the Nepalese King and the 9/11 catastrophe on Hindu and Muslim population of India. This was not relocation of the assessee to countries for any independent job. Thus, the whole of the income was taxable in India. 4.8 The learned DR relied on the decision of the Hon'ble Supreme Court in the case of Performing Right Society Ltd. v. CIT [1977] 106 ITR 11. The facts of that case are that under an agreement executed in England, the assessee Co., incorporated in England, received royalties from Government of India for broadcasting western music from the stations of All India Radio. The Society received royalties and, after deducting expenses, distributed it to the members in proportion to their work publicly performed. It was claimed that the royalties received were not taxable in India. The Hon'ble Court pointed out that the royalties were received from the Government of India, under the agreement for broadcasting western music from stations of All India Radio. Therefore, royalties payable to society constituted its income. The question is whether such income accrued or arose in India. The case of the assessee was that the source of income was the agreement executed in Engl....
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....endered in India. Therefore, the salary attributed to services rendered outside India was not considered for tax purposes in India. The learned counsel further referred to the job functions, finding place in page Nos. 12 and 13 of the paper book-I, which we have already discussed. She also referred to the pages 68, 69 and 70 of the paper book which inter alia contain the detailed dates on which the assessee remained outside India. Page 68 contains a certificate from the employer, showing that he was paid salary amounting to Japanese Yens 1,44,68,115 and bonus amounting to Japanese Yens 25,58,538. Page 70 contains a certificate from the employer to the effect that due to unfortunate bomb attacks in the USA on 11-9-2001, the assessee was required to travel to USA and other parts of the world for news gathering and reporting in connection with the attacks and developments thereafter during the period 11-9-2001 to March 2002. In this connection, we wish to point out here, that the assessee visited Pakistan, US, UK from 12-9-2001 to 12-11-2001. However, due to inadequate evidence, the number of days for which he stayed in Pakistan is not ascertainable. The learned counsel also referred ....
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....-2006. On that day, the learned counsel filed synopsis, which included a certificate from the employer, territorial structure of the offices of the employer and clarification from the employer regarding the job functions of the assessee. It was requested that this evidence may be admitted, the reason being that the job function furnished in paper book-I, was not happily translated and, therefore, it tended to give a distorted picture of the assessee's job functions. She also promised to file a copy of the original Japanese version of the assignment terms. This evidence was objected to by the learned DR and it was pointed out that such evidence was not there before the lower authorities or even before the Tribunal, till the arguments of the revenue were completed. 5.4 We have considered the rival submissions. Rule 29 of the Appellate Tribunal Rules, 1963, provides that the parties to the appeal shall be not entitled to produce additional evidence either oral or documentary before the Tribunal. However, if the Tribunal requires any document to be produced or witness to be examined or any affidavit to be filed to enable it to pass orders etc., it may, for the reasons to be recorded....
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....xpect from time to time. Since the assessee was the employee of NHK, Japan, in case of exigencies, his services could be assigned from time to time to any part of the world. Thus, the main function was to report news from South Asia. It was also provided that the emoluments will be subject to tax, as per laws applicable in the host country, India. This clause further strengthens the view that the main functions of the assessee was to gather news from South Asia and transmit the same to NHK, Japan. As pointed out by the learned DR, this function will also include gathering of news in the neighbouring countries as well as far off countries which will have direct impact on South Asia. Thus, gathering of news in Nepal at the time of assassination of Nepalese King and gathering of news in US, UK and Pakistan after 11-9-2001 catastrophe were incidental to the main function of gathering news in South Asia, as this events had substantive impact on Hindu and Muslim population respectively of India. The assessee was provided rent-free accommodation of which he continued to have possession for the whole of the year. 6.2 The assessee, being a NOR, is subject to provision to clauses (a) & (b....
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....m commonsense and plain thinking, it becomes clear that the salary for the whole year accrued to him because of his assignment as Chief of News Bureau Office, New Delhi. It would be obvious to anyone that NHK, Japan would have offices at least in Bangkok, US and UK and as such there would have been no need for him to travel to these places to gather news independently. The purpose obviously was to gather stories which were relevant to and had impact on the South Asia region. There is nothing on record that his salary structure was changed when he visited US and UK so as to amount to relocation. The assessee continued to occupy the rent-free accommodation throughout the year. Therefore, we are of the considered view that the whole of the salary, income and bonus accrued to the assessee in India. In view thereof, it is not necessary for us to go into the issue on deemed accrual under section 9, as pointed out by the Hon'ble Supreme Court in the case of Performing Right Society Ltd. 6.3 In the result, the order of the learned CIT(A) is reversed and the order of the Assessing Officer is restored. Thus, the appeal of the revenue is allowed. ITA No. 4507 (Delhi)/2003- in the case o....