2011 (5) TMI 362 - HC - Income Tax

Assessee in default - Non deduction of TDS u/s 192 - Payment of Salary - expatriate employees from Japan - Held that - at the relevant time, there was a debate on the question as to whether TDS was deductible under the Income Tax Act, 1961, on foreign salary payment as a component of the total salary paid to an expatriate working in India? - This controversy came to an end vide judgment of this Court in the case of Commissioner of Income Tax Vs. Eli Lilly & Co. (India) Pvt. Ltd., (2009 -TMI - 32752 - SUPREME COURT) - Assessee could not be declared as assessee in default under Section 192 read with Section 201 of the Act for the relevant period.

Summary

Issues:
1. Treatment of a Non-Resident Company as an assessee in default under Sections 201 and 201(1) and 201(1A) of the Income Tax Act.
2. Exclusion of citizen tax as an overriding charge in the computation of taxable income.
3. Determination of default under Sections 201(1) and 201(1A) and housing norm deduction.
4. Validity of orders for financial years 1988-89 to 1994-95 based on limitation.
5. Consideration of non-deduction of tax at source on overseas payments to expatriate employees.
6. Impact of subsequent Supreme Court orders on the issue of limitation and default under Sections 192 and 201 of the Income Tax Act.

Analysis:

1. The respondent, a Public Broadcasting Company of Japan, was treated as an assessee in default under Sections 201 and 201(1) and 201(1A) of the Income Tax Act due to issues related to expatriate employees' salaries and citizen tax deductions. The Commissioner of Income Tax (Appeals) held that citizen tax was an overriding charge on salary income and should be excluded in the computation of taxable income. However, the issue of default under Sections 201(1) and 201(1A) was decided against the assessee for multiple financial years.

2. The Tribunal, upon appeal, found that the Revenue failed to provide the English translation of the Citizens Tax Act as directed by the Supreme Court, leading to a dilemma in decision-making. Additionally, the Tribunal considered the subsequent Supreme Court ruling upholding the quashing of orders under Sections 201(1) and 201(1A), making it seem futile to determine the overriding charge of the Citizens Tax Act on the salary income of the assessee.

3. The Supreme Court's direction to reexamine the issue in light of the Citizens Tax Act was hindered by the lack of translated provisions and the impact of the subsequent Supreme Court order. The Tribunal's inability to proceed without the English translation and the futility perceived due to the Supreme Court's ruling on the issue of default led to the dismissal of the appeal.

4. The Supreme Court, in a subsequent order related to another batch of appeals, clarified that the issue of limitation had become academic due to the resolution of the debate on tax deduction on foreign salary payments. The Court held that the assessee could not be treated as in default under the Income Tax Act, ultimately leading to the dismissal of the appeals on this ground alone.

5. The subsequent orders of the Supreme Court, particularly in the case of the present assessee, had a significant impact on the determination of default under the Income Tax Act. The resolution of the debate on tax deduction and the clarification on limitation issues rendered the appeals academic, resulting in the quashing of proceedings initiated by the Assessing Officer.

6. The Tribunal's decision to dismiss the appeal based on the academic nature of the issue, influenced by the subsequent Supreme Court orders, highlighted the evolving legal landscape and the importance of judicial interpretations in tax matters. The impact of subsequent rulings on ongoing cases underscores the dynamic nature of tax law and its implications on assessments and defaults.