Linkedin Profiles of Employees can be used to determine PE in India – Delhi ITAT’s interim order


GE Energy Parts Inc v Addl DIT ITA No. 671/Del/2011 dated 04.07.2014 (Delhi ITAT’s interim order)

Decision:

Whether Re-assessment proceedings are valid:

  • In the reasons recorded by assessing officer it was categorically stated that the information regarding the employees of GE in India prior to the present expats was not given by GE group.  
  • Assessing officer had recorded a finding that there had been the persons working for such sales through out the period 1-4-2000 to till date. This factual finding recorded by assessing officer was not objected to by the assessee while filing objections before assessing officer. 
  • It cannot be said that assessing officer had not made inquiries regarding the employees of GEIPL who were working for other GE entities. The assessee did not provide this information. In the back drop of these facts, now the department is seeking admission of Linkedin profiles of various employees which has been down loaded from the website and is available in public domain.

On Admissibility of additional evidence:

  • Section 254(1) provides that the Tribunal may, after giving both parties to the appeal an opportunity of being heard, “pass such orders therein as it thinks fit”. Section 255 deals with the procedure before the Appellate Tribunal in discharge of its powers and functions.
  • On perusal of the above section, Tribunal has all the powers vested in it which are vested in the income-tax authorities with reference to section 131.
  • The basic ingredient for exercising powers under Rule 29 for admission of additional evidence is that Tribunal should come to the conclusion that a particular document would be necessary for consideration to enable it to pass orders or for any other substantial cause. The document can be brought to the notice of Tribunal by either party.
  • The Tribunal is final fact finding body and, therefore, the powers have been conferred on it u/s 131 and Rule 29 to enable it to record a factual finding after considering the entire evidence. For dispensation of justice wide powers have been given to Tribunal.

On LInkedIN profiles:

  • Ld. Sr. Counsel has submitted that Linkedin profiles is an hearsay evidence and has no probative value. In this regard ld. Sr. counsel has relied on two decisions of US courts.  Further, Linkedin profiles is self appraisal of employees and, therefore, it is hearsay evidence.
  • We are unable to accept this contention. Linkedin profiles is not in the nature of hearsay because it is the employee who himself has given all the relevant details and the same relate to him. These detalis are akin to admission made by a person. No third party is involved in creating of this Linkedin profiles and, therefore, it cannot be said to be an hearsay evidence.
  • The Linkedin profiles are in the nature of admissions of persons on their job profile. The data is in pubic domain.

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