9911796707
TMI Blog1994 (5) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... .1st April, 1983. The assessee paid a sum of Rs. 1,19,10,729 under s. 140A in July, 1983, by way of its liability towards payment of taxes on the remunerations paid to the foreign technicians for the asst. yr. 1983-84 under the impression that the said notification was applicable for asst. yr. 1983-84. Subsequently, the assessee realised that the said notification was applicable w.e.f. asst. yr. 1984-85. The assessee accordingly entered into correspondence with the CIT,Madras, on5th Nov., 1983, requesting for confirmation of its views, as also proposing to set off its liability for asst. yr. 1984-85 with the amount of Rs. 1,19,10,729 already deposited with the Department. There was no response from the CIT. The assessee in its letter dt.24th Jan., 1984requested the CIT to adjust demand against the assessee for asst. yr. 1984-85 with the said amount of Rs. 1,19,10,729. It also undertook to pay the balance of its liability on account of taxes in respect of its expatriate personnel. On 24th Oct., 1984, the assessee was informed by the then IAC (Asst.) Range-II that the notification applied retrospectively and as such there was no question of there being any refund for asst. yr. 1983-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on records to show that the assessee had approached to the Board. But at the same time this argument of the Assessing Officer that the payment of taxes could be made on 15th June, 15th Sept., 15th Dec., and 15th March of the relevant accounting year with permission of the IAC obtained by the ITO also does not seem to be in conformity with the situation of the case. In this event, the IAC is the Assessing Officer and, therefore, there is no need to obtaining any further permission from any other IAC. Now coming to the specific letter of the appellant-company, I am of the view that the appellant-company had correctly interpreted that the income of the accounting year ending 31st March, 1983 is not to be assessed in the asst. yr. 1983-84 because the IT laws did not extend to the Continental Shelf and Exclusive Economic Zone during the relevant accounting period. Therefore, the assessee was perfectly justified in making this appeal to the Assessing Officer and also to the CIT, Tamil Nadu, to adjust the balance amount of Rs. 1,10,41,678 out of the taxes paid to the extent of Rs. 1,19,10,279 in the asst. yr. 1983-84 since I have already held in A. No. 230/86-87/DDN dt. 20th Feb., 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, s. 192 was not attracted. 5.1 Apart from this, the learned authorised representative submitted that the entire conduct of the assessee is bona fide. He submitted that under a bona fide belief that the provisions of Notification were applicable for asst. yr. 1983-84, the assessee had paid an amount of Rs. 1,19,10,729 even though the notification was dt. 31st march, 1983, itself. He submitted that the assessee at that point of time did not go into the question of applicability of notification for asst. yr. 1983- 84 or 1984-85 but was in a hurry to steer clear of the Revenue and made the impugned payment. He submitted that subsequently it was learnt authoritatively that the notification was applicable for asst. yr. 1984-85, as has also been held by the Hon'ble Bombay High Court in the case of McDermett International Inc. vs. Union of India (1988) 70 CTR (Bom) 48 : (1988) 173 ITR 155 (Bom) and again by various Benches of the Tribunal. He submitted that the assessee on its own also won and got a refund of the entire amount of Rs. 1,19,10,729 on 8th Dec., 1986 for asst. yr. 1983-84, on which no interest was either paid to the assessee. He submitted that in these circumstances t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh High Court was inapplicable on facts and in the circumstances, inasmuch as the Hon'ble High Court had held that since the remuneration was not assessable as salary in the hands of the recipients, i.e., expatriate, the provisions of s. 192 are not attracted. In reply, the learned authorised representative countered it that the learned Departmental Representative is misinformed, inasmuch as the Hon'ble High Court have held that it is because of the exemption under s. 10(6)(viia) that the remuneration is not chargeable to tax. Shri Dalvi stressed that the Hon'ble High Court have clearly held that on facts and circumstances the provisions of s. 192 are inapplicable when the responsibility for payment of tax is that of the employer. On the other hand, the learned Departmental Representative submitted that s. 195A comes into play, being a machinery section, notwithstanding the fact that it came into the statute book at a later date. According to him, s. 195A provides for grossing up of taxes paid and, therefore, the provisions of s. 192 are applicable. 6.1 The Departmental Representative also attacked the plea of bona fide put forward by the assessee and submitted that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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