The Tribunal admits Linkedin profiles of expatriate employees as additional evidence to determine the existence of PE in India.
Facts:
The
tax authority had conducted a survey at the premises of Liaison Office
(“LO”) of GE International Operations Company Inc. In the course of
survey, the tax authority obtained certain documents, recorded
statements of various persons and inquired about income-generating
activities of GE group, employees working from LO and their roles and
responsibilities, etc.
It was found that generally the business
heads were expatriates appointed to head Indian operations and the
support staff being provided by GE India Industrial Private Limited and
other third parties. While the expatriates were on the payroll of GE
International Inc., they worked for various GE group businesses.
The
tax authority sought information in respect of expatriate employees
such as nature of job, duties and responsibilities, terms, conditions
and duration of employment, entity for which they were working,
emoluments and basis of incentives/bonuses, self-appraisal of work done
in India, etc. The tax authority received only part response mentioning
that the employees were merely acting as communication channel for the
overseas entity.
Hence, in absence of necessary facts, the tax
authority furnished additional evidence in the form of Linkedin profile
of the employees and contended that since these were available in public
domain, they should be admitted as additional evidence. The additional
evidence was provided to disprove the claim that these employees were
merely acting as a communication channel. This evidence was never
refuted.
Held:
• Linkedin profiles are not hearsay
because it is the employee himself who has given the details relating to
him and no third party is involved in creating the profiles. The data
is in public domain.
• In terms of section 60 of the Evidence
Act, oral evidence must be direct. It is well-settled law that admission
though not conclusive is binding and decisive unless it is withdrawn or
proved to be erroneous. Linkedin profiles are in the nature of
admission of the person whose profile it is.
• It is up to the taxpayer to rebut the information contained in Linkedin profiles by bringing on record contrary facts.
•
The evidence sought to be filed by the tax authority was only
supporting in nature and it would assist in appreciating the facts in
judicial manner.
Accordingly, the Tribunal admitted Linkedin
profiles as additional evidence. However, in the interim order, the
Tribunal did not conclude on the existence of PE.
