2015 (12) TMI 910 - HC - Income Tax

Failure to deposit TDS deducted from the salary received by the expatriate employee outside India - penalty u/s 271C - Held that - In the present case, in light of the factual findings of the ITAT that there was nothing brought on record by the Department to show that the Respondent had been intimated by the expatriate employees about the remuneration received by them from ALF, it is held that the Respondent could not be held to be an Assessee in default and no penalty under Section 271C of the Act for the FYs in question could have been levied on it. Accordingly, the question framed by the Court is answered in favour of the Assessee and against the Revenue.

Summary

Issues:
1. Dismissal of appeals under Section 260A of the Income Tax Act, 1961 on the ground of no substantial question of law.
2. Entitlement of the assessee to plead reasonable cause for not depositing tax deducted at source.
3. Penalty imposition under Section 271C for failure to deduct tax from expatriate employees' salaries.
4. Interpretation of Sections 192(1) and 192(2) regarding duty to deduct tax at source.
5. Comparison with a similar case involving expatriate employees and tax deduction.

Issue 1:
The High Court dismissed the appeals by the Revenue under Section 260A of the Income Tax Act, 1961 initially, stating that no substantial question of law arose. However, the Supreme Court allowed the appeal by the Revenue and remanded the matter back to the High Court for a fresh decision. The key question was whether the High Court was right in dismissing the appeal based on the absence of a legal question. The matter was subsequently listed for directions before the High Court in January 2008.

Issue 2:
The core issue was whether the assessee was entitled to plead reasonable cause for not depositing the tax deducted at source. The Court considered the scenario where tax had been deducted after a survey, and the question was whether the assessee could claim a reasonable cause for the delay in depositing the tax. The Court found that the assessee's plea for reasonable cause was valid, especially considering the circumstances where the tax deducted had been subsequently deposited with the Government.

Issue 3:
The penalty under Section 271C was imposed on the assessee for failing to deduct tax from expatriate employees' salaries. The Additional Commissioner of Income Tax, TDS Range rejected the explanation offered by the assessee and levied a penalty equal to the amount that was not deducted. However, the Court found that the penalty could not be upheld based on the factual findings that the assessee was not intimated by the expatriate employees about the remuneration received from the parent company, which led to the failure to deduct tax.

Issue 4:
The interpretation of Sections 192(1) and 192(2) was crucial in determining the duty to deduct tax at source from expatriate employees' salaries. The Court held that the obligation to deduct tax arises only when the employee furnishes details to the Indian company about the remuneration received from another employer. It was emphasized that the liability to deduct TDS arises after the information is provided by the employee, and in the absence of such intimation, the Indian company cannot be held in default.

Issue 5:
The Court compared the present case with a similar case involving expatriate employees and tax deduction. Referring to a previous judgment, the Court highlighted the importance of the employee providing information about salary received from the principal employer outside India. The Court concluded that in both cases, the Indian companies could not be held in default for failing to deduct tax as they were unaware of the payments made outside India. Consequently, the Court ruled in favor of the assessee and dismissed the appeals without costs.