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COMMISSIONER OF INCOME TAX DELHI XVII Vs. M/S.BABCOCK POWER (OVERSEAS PROJECTS) LTD.
September, 24th 2014
$~R-2
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of Decision: September 05, 2014
+                              ITA 178/2002
COMMISSIONER OF INCOME TAX DELHI XVII
                                                                     ..... Appellant
                                  Through: Mr.Rohit Madan, Standing Counsel
                         versus
M/S.BABCOCK POWER
(OVERSEAS PROJECTS) LTD.                                        ..... Respondent

                                  Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE V. KAMESWAR RAO

V. KAMESWAR RAO, J (ORAL)
1.          The present appeal by Revenue filed under Section 260A of the

Income-Tax Act, 1961 was admitted for hearing on the following substantial

question of law:-


                   "Whether the Tribunal was correct in law in
                   directing the Assessing Officer to recomputed the
                   interest payable by the assessee under Section
                   201(1A) of the Income Tax Act, 1961 after taking
                   into consideration the advance tax and self-
                   assessment tax paid by the employees concern?"




2.          The facts as culled out from the record are as under:-
            The respondent/assessee­M/s.Babcock Power (Overseas Projects)

Ltd., a non-resident company incorporated in United Kingdom, during the


ITA No. 178/2000                                                           Page 1 of 5
Assessment Years 1987-88 to 1989-90 had a project office in India and was

engaged in execution of a contract of setting up a coal based thermal plant.

The respondent-assessee to fulfil their contractual obligations, had engaged

their foreign technicians who were deputed to work at the Indian project

office. These employees were on pay roll of UK office of the respondent-

assessee and salaries were paid in foreign currency in their bank accounts

abroad.       These contracts of employment were duly approved by the

Ministry of Mines for the purposes of Section 10(6) of the Act.


3.          Respondent-assessee did not deduct Tax at Source on the salary

paid on the ground that tax was not required to be deducted. The Assessing

Officer disagreed and also directed interest under Section 201(A) of the Act

be charged.

4.          The respondent-assessee challenged the order of the CIT (Appeals)

before the Tribunal primarily on three grounds. The first one being that the

provisions of Section 192 were not applicable to the respondent-assessee

inasmuch as the assessee as well as the foreign technicians were

non-residents; the remuneration was paid outside India; the contract of

employment was also outside India.         The second ground was that the

assessee was under a bone fide belief that the provisions of Section 192

were not applicable to them and in support of this ground the respondent-

assessee relied upon text by Jurist Mr.Nani A. Palkhivala in (Law and

ITA No. 178/2000                                                      Page 2 of 5
Practice of Income-Tax) 8th Edn. Vol.1 and the judgment of the Supreme

Court in the case of Electronic Corporation of India vs. Commissioner of

Income-Tax, [1990] 183 ITR 43 (SC). The third ground was that no

interest could be levied since demand of the tax itself has been deleted by

the Tribunal.


5.          The Tribunal rejected the first two grounds raised by the

respondent-assessee. As regards the third ground the Tribunal found error

in the order of the authorities below on the time period for which interest

was payable. The Tribunal was of the view that the concerned foreign

technicians had paid the tax by way of advance tax as well as the self-

assessment tax and levy of interest cannot be for a period beyond the said

dates, as tax stood paid/deposited. The Tribunal modified the order of the

CIT(Appeals) and directed the Assessing Officer to recompute the levy of

interest for the period commencing from the first day of April following the

end of the relevant financial year till the date of actual payment that is the

date of self-assessment tax by the concerned employees. Further, it held

that no interest would be payable on the amount of advance tax paid by the

respective foreign technicians.

6.          This issue is no more res integra having been decided by this

Court with respect to the same respondent-assessee in ITA No.82/2000

wherein on the issue of levy of interest this Court has dismissed the appeal

ITA No. 178/2000                                                      Page 3 of 5
by answering the substantial question of law against the appellant Revenue

in the following manner:-

            "3. The respondent/assessee - M/s. Babcock Power (Overseas Projects)
            Ltd. is a non-resident company incorporated in United Kingdom, which
            during the Assessment Years 1987-88 to 1989-90 had a project office in
            India for execution of a contract. The respondent to fulfil their
            contractual obligations had engaged foreign technicians who were deputed
            to                                 work                                 at
             the Indian project office. These employees were on pay roll of UK office
              of the respondent/assessee and salaries were also paid in foreign
              currency in their bank accounts abroad. These contracts of employment
              were duly approved by the Ministry of Mines for the purposes of Section
              10(6) of the Act.

               4. A question arose, whether the respondent/assessee was liable to deduct
             tax at source under Section 192 of the Act on the salaries paid to the
             foreign technicians. Tribunal, by the impugned order, has rejected the
             contention of the respondent assessee that they were not liable to deduct
             tax at source. Tribunal further upheld levy of interest and observed
             that interest was payable under Sections 201(1) and 201(1A). Interest
             has been referred to as the legitimate amount of tax due for delayed
             payment. However, the Tribunal did not accept and agree with levy of
             interest for the period commencing from 1st April following the Financial
             Year till the date of the order of levy of interest under Section 201(1A)
             observing that this was erroneous and cannot be sustained. This
             finding/direction is questioned.

             5. The admitted position is that the foreign employees of the
             respondent/assessee had paid tax in India either by way of advance tax or
             self assessment tax. Tribunal has further observed that the Assessing
             Officer had himself not levied interest commencing from the period of
             deductibility of tax till the end of the Financial Year. Accordingly,
             the Tribunal was not inclined to enlarge the period for which the
             interest was payable. In the subsequent paragraphs, Tribunal has held
             and directed the Assessing Officer to re-compute levy of interest for the
             period commencing from the first date of April following the end of the
             relevant Financial Year till the date of actual payment i.e. the date of
             payment of self assessment tax, if payable by the employees, or after
             taking into consideration the advance tax and self assessment tax paid by
             the employees. No further interest, it has been directed, would be
             payable. The view taken by the Tribunal is in consonance with the
             decision of a Division Bench of this Court dated 21.12.2011 in ITA
             No.74/2003 titled Commissioner of Income Tax TDS vs. M/s. American
             Express Bank Ltd., in which it has been held as under:

             Insofar as the second question is concerned i.e., with regard to the
             interest payable under Section 201(1A) of the said Act, that is a
             mandatory provision, as already held by a Division Bench of this Court in





ITA No. 178/2000                                                                    Page 4 of 5
             the case of CIT v. ITC Limited, ITA No.475/2010, dated 11.05.2011. The
             said Division Bench observed as under:-


             ?xxxx xxxx xxxx xxxx


             However, levy of interest under section 201(1A) is neither treated as
             penalty nor has the said provision been included in Section 273B to make
             ,,reasonableness of the cause for the failure to deduct a relevant
             consideration. Section 201(1A) makes the payment of simple interest
             mandatory. The payment of interest under that provision is not penal.
             There is, therefore, no question of waiver of such interest on the basis
             that the default was not intentional or on any other basis. (See Bennet
             Coleman and Co. Ltd. v. V.P.Damle, Third ITO, [1986] 157 ITR 812
            (Bom.) and CIT v. Prem Nath Motors (P). Ltd., [2002] 120 Taxman 584
            (Delhi).

             Therefore, the second question is also answered in favour of the Revenue
             and against the assessee

            "6.      It has been further observed in American Express Bank Ltd. (supra)
            that if the employees (i.e. payee) had paid taxes as per the individual
            return/assessment, no amount as tax would be payable to that extent and the
            liability for interest would be only for the period commencing from the date
            of such tax was deductible to the date on which tax was actually paid. [CIT
            vs. Adidas India Marketing (P) Ltd. (2007) 288 ITR 379 Delhi and CIT ­
            XVII vs. Trans Bharat Aviation (P) Ltd. (2010) 320 ITR 671.].

            7.      In view of the aforesaid position, the question is answered against
            the appellant Revenue and in favour of the respondent/assessee. The order
            of the Tribunal does not call for any interference."


5.          For parity of reasons we answer the substantial question of law

against the appellant Revenue and in favour of the respondent-assessee.

The appeal is accordingly dismissed. No costs.



                                                              (V. KAMESWAR RAO)
                                                                     JUDGE


                                                                  (SANJIV KHANNA)
                                                                       JUDGE
SEPTEMBER 05, 2014/HP


ITA No. 178/2000                                                                    Page 5 of 5

 
 
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