2006 (11) TMI 107 - HC - Income Tax

Deduction of tax at source - Revenue is of the view that it is the liability of the assessee to deduct tax at source in respect of the income receive by his expatriate executives from outside India - Obligation to deduct tax not proved and imposed interest on assessee were removed

Summary

Issues:
1. Whether the respondent-company was obligated to deduct tax at source on salaries paid to expatriate employees.
2. Whether the respondent-company was liable for interest due to non-deduction of tax at source.
3. Whether the imposition of a penalty was justified for failure to deduct tax at source.
4. Whether interest could be recoverable from the respondent-company despite the employees already paying tax on their foreign incomes.

Analysis:
1. The High Court considered the case where a joint venture Indian company, formed by collaboration between two entities, employed four expatriates who were receiving salaries both in India and abroad. The respondent had deducted tax at source (TDS) on salaries paid in India but not on salaries received from the collaborating company. The court referred to CIT v. Tej Quebecor Printing Ltd. and emphasized that TDS is required only at the time of making the payment. Since the salaries payable abroad had not been actually paid by the respondent, the obligation to deduct TDS did not arise, as per the court's interpretation of the law.

2. The Revenue argued that the respondent-company, being aware of the salaries received by the expatriates abroad, was duty-bound to deduct TDS on those amounts as well. However, the court held that since the salaries had not been paid by the respondent abroad, there was no requirement to deduct TDS on those amounts. The court relied on previous judgments to support its reasoning, emphasizing that the actual act of making the payment is crucial for TDS deduction.

3. Referring to CIT v. Sencma SA, France, the court highlighted that failure to deduct tax at source should not automatically lead to penalty proceedings. The court noted that confusion existed on this issue and that imposition of interest could be a sufficient remedy. The court dismissed the argument for imposing a penalty and emphasized that interest might be an appropriate recompense for non-deduction of tax at source.

4. The Revenue contended that interest could be recoverable from the respondent-company despite the employees already paying tax on their foreign incomes. However, the court disagreed, stating that there was no justification for claiming interest from the respondent-company as there was no infraction of the law in not deducting tax at source. The court rejected this argument and concluded that interest recovery from the respondent was not warranted.

In conclusion, the High Court held that no substantial question of law had arisen in the case, and the order was limited to the specific facts presented. The court dismissed the appeals with no order as to costs, indicating that the judgment was not intended as a precedent for future cases.