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| Social security is deductible expense for expatriates |
| HP Agarwal / New Delhi May 17, 2010, 00:42 IST |
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Expatriate employees’ salary for working in India is chargeable to tax in India. The tax is charged on the basis of working in India whether the salary amount is received in India or outside India. While computing the taxable salary various deductions in respect of sums paid towards retirement benefits and saving schemes, e.g. contribution to Provident Fund, PPF, NSC contribution etc are allowed from the income. But, where the expatriate employees are required to pay certain sums in their home country towards statutory payments, like Citizen Tax, Social Security Charges etc. a question arises whether such payments shall be allowed as deduction while computing their taxable income in India.
In this context, a reference may be made to the decision of the Hon’ble ITAT Bombay in the case of GALLOTTI RAOUL v. Asstt. CIT [61 ITD 453]. In the said case, the social security charges had to be contributed, which guarantees against various types of risks. The issue was whether social security charges are deductible from salary income. The Hon’ble Tribunal applying the case of CIT v Sitaldas Tirathdas [41 ITR 367](SC) held that social security charges are to be deducted from the salary income as prior charge by overriding title.
Similar issue came up for consideration before the Hon’ble Supreme Court in the case of CIT v NHK Japan Broadcasting Corporation [322 ITR 628]. In the said case, the assessee was a Japanese organization. It paid salary and housing allowance to employees deputed in India. The letter of employment read: “your emoluments shall be subject to deduction of taxes as per applicable laws and tax liability in host country (India) shall be borne by the NHK Japan Broadcasting Corporation”. The assessing officer while assessing the tax liability of expatriate employees in India included the citizen tax as part of their income.
On appeal the CIT(A) held that the citizen tax is a statutory levy in Japan and that such tax constituted overriding charge on the salary income and was, therefore, to be excluded in computing the taxable income. This view was upheld by the ITAT and the Hon’ble High Court.
The Hon’ble Supreme Court remanded the matter to the Tribunal holding that the provisions of the Citizens Individual Inhabitant Tax Act, which was a Japanese law, should have been analysed in order to ascertain whether the nature of the levy of Citizen Tax has an overriding charge. Thus, it is clear from the decision of the Hon’ble Supreme Court that in case the Citizen Tax, being an overriding obligation, is paid by the employer, then it shall not be treated as income in the hands of the employees in India.
It, therefore, becomes necessary to analyse whether the payment of sums like social security charges, Citizen Tax etc. has an overriding charge. It appears that where the expatriate employees are mandatorily required to pay any statutory dues, the same can be said to have an overriding charge. Such payments can fall in two categories:
i. Where the employer pays such sum directly to the appropriate authority by deducting the same from salary.
ii. Where the employer makes full payment of salary and thereafter the employee himself pays such statutory dues.
The tax authorities may take a view that it is the payment in the first category only which can truly be held as having an overriding charge. The second category is merely an obligation to pay certain dues from out of one’s own income. Income is first received and then applied. The first is a case, in which the income never reaches the assessee.
The above view is not correct because an overriding title is created by virtue of statutory obligation, not by the manner of payment. Nevertheless it is advisable that in order to prove the overriding charge beyond doubt, the employer should himself deduct the amount of such statutory dues before making payment of salary to the employees.
The author is a Sr Partner in S S Kothari Mehta & Co
E-mail: hp.agrawal@sskmin.com
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