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TMI Blog1994 (9) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... with Oil and Natural Gas Commission. With a view to fulfil its contractual obligations AOI had entered into service contracts with its own technician employees. The proforma of such service contract dated 17-1-1984 contain the following : " TERMS OF EMPLOYMENT FOR WORK OFFSHORE INDIA 1. Name : 2. Date of hire : 3. Point of origin : 4. Initial position : 5. Work Schedule : The employees' normal work schedule will be 28 days working on the Rig and 28 days off the rig outside of India. During year 28 days outside of India, you will remain available to the Head Office for, but not limited to, the following : (a) Undergoing training by attending classes at such places, as may be specified. (b) On the spot demonstration to update the knowledge in the latest techniques. (c) To attend to the offshore drilling work on any of the project of the Company in any part of the world at the shortest notice of 24 hours. (d) Travel to and from the Rig. (e) Obtaining Visas, shots etc. The aforesaid assignment shall be obligatory and compulsory and you shall have no option to deny or reject the same. 6. Location : Offshore India. 7. Compensation : Us $ ... per month inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Officer while framing the assessments against each of them for assessment years 1985-86 and 1986-87 for which the previous year ended on 31-3-1985 and 31-3-1986. The Assessing Officer held that 28 days off period is also related to the work on the rig. The 28 days off period, is an outcome of the 28 days duty period on the rig due to the arduous and rigorous nature of the work. Further each of these assessees were given approval under section 10(6)(viia) of the Income-tax Act, the salary income which is of the nature of remuneration, that is referred to in that clause payable for services rendered in India shall be regarded as income earned in India. Thus, the Income-tax Officer held that the whole salary for the total period both spent in and out of India should be assessed in India. 2. Aggrieved against the assessment of the salary for the off period, the assessees went in appeal before the first appellate authority. On behalf of the assessees, the following submissions were made : (A) Each of the assessees worked on rig offshore India for 28 days at a stretch and thereafter was laid of for a period of 28 days out of India. Even though each of these assessees l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no evidence laid by the AOI or its technicians. 3. The first appellate authority held that clauses (a) to (e) of clause 5 of the agreement dated 17-1-1984 discloses that high expertise and proper skill was required for execution of the contract and the AOI by those terms appear to have made some arrangement to train its personnel during the lay-off period. However, those terms by no way influenced the salary paid to the technicians during their tenure of services. There is no evidence on record to show that AOI had ever availed off any opportunity of having trained its technicians on call. In the absence of any such evidence coming out from the record, it is not possible to accept the argument based upon clause 5 in the terms of employment. The first appellate authority had also gone into and extracted clauses 2.1 and 2.2 of the " Operating Services and Maintenance Contract " between the ONGC and AOI, which are as follows : " 2.1 Beginning with the commencement date and continuing for a period of one year thereafter Contractor agreed to provide those personnel designated in Exhibit 'A' during operation of the unit for a consideration of U.S. $ 7,280.00 (U.S. $ 3,640.00 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation. The learned first appellate authority ultimately having rejected the argument advanced on behalf of technicians and having accepted the arguments advanced on behalf of the revenue, dismissed the appeals filed by the technicians, by their impugned orders which were all dated 12-7-1989. Having lost their case before the first appellate authority, each of these technicians come before the Tribunal and thus the matters stand for our consideration. 4. We have heard Miss Preeti Bansal, learned Advocate for the assessee and Mrs. Anuja Sarangi, learned Departmental Representative for the department. The learned counsel for the assessee brought to our notice that the main point involved in these appeals was already covered in favour of the assessees by several decisions rendered by this Tribunal. For instance, for assessment year 1984-85, which is the immediately preceding assessment year for the one under consideration, the case of Mr. W. Fontenot was considered by this Tribunal in favour of the assessee in IT No. 5638 (Del.) of 1989, which was disposed of along with some other appeals by the order of this Tribunal dated 30-3-1988, a copy of which is filed at pages 1 to 12 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect supervision of the ONGC but only worked under the AOI. Therefore, the Calcutta High Court decision in Grindlays Bank Ltd's case which was rendered on different set of facts and does not apply to the facts of the present case. Further in the present case before us the technicians are bound to go anywhere they are posted throughout the World wherever the AOI had got offshore contracts even during the 28 days off period. However, no such right was given to Grindlay's Bank when the officers were enjoying furlough in U.K. This is also one of the main distinctions between the case on hand and Grindlay's Bank case. The Departmental Representative relied upon three decisions. The first is a 'C' Bench decision of the Income-tax Appellate Tribunal, New Delhi dated 25-3-1992 passed in MA. Nos. 234 to 241/DEL./1991. The second is the Delhi Bench 'D' decision dated 29-12-1992 in IT Appeal No. 5639/Del. of 1990 and others in the case of Scan Drilling Co. as the agent of Mr. Trevor Garside, Dehradun. The third order relied upon was the Single Member decision rendered by 'E' Bench of this Tribunal in IT Appeal No. 8051 (Del.)/91 in the case of Halliburton Offshore Services Inc. as agent of Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hore Services Inc. was not filed and it was adversely commented upon. It would appear that for not furnishing the copies of the agreements between the ONGC and the foreign company, the assessee-company in that case was made to fail. We do not know how that order is in any way relevant to the facts of the present case. Suffice it to say that none of the orders relied upon by the learned Departmental Representative apply to the facts of the present case. Thus we reject the arguments advanced by the learned Departmental Representative. 4(b). In CIT v. L. G. Ramamurthi [1977] 110 ITR 453 in the head note of the decision, the Hon'ble Madras High Court held as follows : " No Tribunal of fact has any right or jurisdiction to come to a conclusion entirely contrary to the one reached by another Bench of the same Tribunal on the same facts. It may be that the members who constituted the Tribunal and decided on the earlier occasion were different from the members, who decided the case on the present occasion. But what is relevant is not the personality of the officers presiding over the Tribunal or participating in the hearing but the Tribunal as an institution. If it is to be conceded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clearly stated in the service contract, the model form of which was already filed before the Assessing Officer to show that during the off period the technicians, who were enjoying off period, should be ready to learn the latest techniques, should be ready to go in replacement of the sick, negligent, injured and inefficient crew members working on a drilling rig in India or elsewhere in the World. When that is the condition agreed by each of the technicians working with AOI, can it be stated that they were engaged only for drilling rigs in offshore India. ONGC was not a signatory to the service contract between AOI and the technician-employees. The service contract is not a tripartite agreement between ONGC, AOI and the technicians. A title given to the document is not conclusive. The contents of the whole document should be read as a whole while deciding the real nature of the document and the real nature of the transaction recorded in it. Therefore the caption given on the contract of service, which these technicians entered into with the AOI, cannot be a conclusive test. It is significant to note that the ONGC is not given any authority to call upon any particular technician ..... X X X X Extracts X X X X X X X X Extracts X X X X
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