United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment

Judgment:

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
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		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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S. Rajendra Babu, J.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
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		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds :

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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(2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'united-breweries-ltd-vs-assistant-commissioner'
$args = array(
	(int) 0 => '375125',
	(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
)
$url = 'https://sooperkanoon.com/case/amp/375125/united-breweries-ltd-vs-assistant-commissioner'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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8. In the light of these pleadings and contentions advanced before me the following points arise for consideration :

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'united-breweries-ltd-vs-assistant-commissioner'
$args = array(
	(int) 0 => '375125',
	(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
)
$url = 'https://sooperkanoon.com/case/amp/375125/united-breweries-ltd-vs-assistant-commissioner'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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(1) As to the jurisdiction of the second respondent.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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(2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
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		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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(3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
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		'respondent' => 'Assistant Commissioner of Income-tax and Others',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
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			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means :

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
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		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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(ii) All proceedings to be instituted in future.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '375125',
	(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$url = 'https://sooperkanoon.com/case/amp/375125/united-breweries-ltd-vs-assistant-commissioner'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
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		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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Point No. 2 :

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '375125',
	(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$url = 'https://sooperkanoon.com/case/amp/375125/united-breweries-ltd-vs-assistant-commissioner'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
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		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
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			'respondent' => 'Assistant Commissioner of Income-tax and Others',
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
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		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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Point No. 3 :

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
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			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
		'ratiodecidendi' => '',
		'respondent' => 'Assistant Commissioner of Income-tax and Others',
		'sub' => 'Direct Taxation',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'united-breweries-ltd-vs-assistant-commissioner'
$args = array(
	(int) 0 => '375125',
	(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
)
$url = 'https://sooperkanoon.com/case/amp/375125/united-breweries-ltd-vs-assistant-commissioner'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged.

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	'title_for_layout' => 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375125',
			'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
			'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
			'appellant' => 'United Breweries Ltd.',
			'authreffered' => '',
			'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' G. Sarangan, Adv.',
			'counseldef' => ' H.L. Datta, Adv.',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1994-08-26',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S. Rajendra Babu, J.',
			'judgement' => '<p style="text-align: justify;">S. Rajendra Babu, J. </p><p style="text-align: justify;">1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p style="text-align: justify;">2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p style="text-align: justify;">3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p style="text-align: justify;">(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p style="text-align: justify;"> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p style="text-align: justify;">4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p style="text-align: justify;">5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p style="text-align: justify;">6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p style="text-align: justify;">7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p style="text-align: justify;">8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p style="text-align: justify;">(1) As to the jurisdiction of the second respondent. </p><p style="text-align: justify;"> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p style="text-align: justify;"> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p style="text-align: justify;">Point No. 1 : </p><p style="text-align: justify;">9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p style="text-align: justify;">10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p style="text-align: justify;">(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p style="text-align: justify;"> (ii) All proceedings to be instituted in future. </p><p style="text-align: justify;">11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p style="text-align: justify;">12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p style="text-align: justify;">13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p style="text-align: justify;">14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p style="text-align: justify;">15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p style="text-align: justify;">Point No. 2 : </p><p style="text-align: justify;">16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p style="text-align: justify;">17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p style="text-align: justify;">18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p style="text-align: justify;">19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p style="text-align: justify;">Point No. 3 : </p><p style="text-align: justify;">20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p style="text-align: justify;">21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)',
			'ratiodecidendi' => '',
			'respondent' => 'Assistant Commissioner of Income-tax and Others',
			'sub' => 'Direct Taxation',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'united-breweries-ltd-vs-assistant-commissioner',
	'args' => array(
		(int) 0 => '375125',
		(int) 1 => 'united-breweries-ltd-vs-assistant-commissioner'
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$title_for_layout = 'United Breweries Ltd Vs Assistant Commissioner of Income Tax and Others - Citation 375125 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375125',
		'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226 ',
		'appealno' => 'Writ Petitions Nos. 38379 and 38380 of 1993',
		'appellant' => 'United Breweries Ltd.',
		'authreffered' => '',
		'casename' => 'United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Ram Mohan Reddy, J] Quantum of compensation  Bodily injury - Held, Bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. Deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. Further, Although it is not possible to equate money with human suffering or personal deprivation, the Court has duty to make an attempt to award damages so far as money can compensate the loss. While considering deprivation, the Court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely a token. Section 168; Quantum of compensation Held, While deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. Further, In granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. In personal injury actions, the two main elements are the personal loss and pecuniary loss. Section 168; [Ram Mohan Reddy, J] Compensation  Speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a Maruti car causing grievous injuries to the occupants and death of one person  elbow joint of the right hand of the appellant was grievously injured  MACT awarded Rs.10,000/- towards pain, shock and sufferings; Rs.20,000/- towards grievous injuries; Rs.4,000/- towards conveyance and attendant charges; Rs.36,500/- towards medical expenses and Rs.8,000/- towards loss of earnings for 2 months totalling to Rs.78,500/- - Appeal for enhancement  Held, The Tribunal practiced miserliness in awarding compensation of Rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. The joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. The impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. In fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. The disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. The elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. With the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. In the result, the compensation was enhanced to Rs.3,40,420/- with interest at 6% p.a. (Rs.50,000/- towards loss of amenities of life, happiness, frustration; Rs.35,000/- towards loss of marriage prospects; Rs.15,000/- towards Conveyance, attendant charges, food and nourishment; Rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; Rs.97,920/- towards loss of future earning due to disability; Rs.16,000/- towards loss of earning during laid off period; Rs.15,000/- towards future medical expenses; Rs.25,000/- towards loss of expectation of life and Rs.36,500/- towards Medical expenses).  -  2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. 18. It may be interesting to note that in Piara Singh v.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' G. Sarangan, Adv.',
		'counseldef' => ' H.L. Datta, Adv.',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1994-08-26',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S. Rajendra Babu, J.',
		'judgement' => '<p>S. Rajendra Babu, J. </p><p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. </p><p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. </p><p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : </p><p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. </p><p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. </p><p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. </p><p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. </p><p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. </p><p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. </p><p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : </p><p>(1) As to the jurisdiction of the second respondent. </p><p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. </p><p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. </p><p>Point No. 1 : </p><p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. </p><p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : </p><p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. </p><p> (ii) All proceedings to be instituted in future. </p><p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. </p><p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. </p><p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. </p><p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. </p><p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. </p><p>Point No. 2 : </p><p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. </p><p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. </p><p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. </p><p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. </p><p>Point No. 3 : </p><p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. </p><p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p></p><p>',
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	(int) 0 => '<p>S. Rajendra Babu, J. ',
	(int) 1 => '<p>1. These two petitions are filed by a company, who is an assessee under the Income-tax Act, 1961 (for short, 'the Act'). Several payments are made by the petitioner such as salaries, interest, etc. The said deductions were being credited to the account of the Income tax Officer, Company Ward No. 4(1), Bangalore. The petitioner claims that in respect of tax deducted at source (TDS), jurisdiction had been conferred upon the Income-tax Officer, Company Ward No. 4(1), Bangalore, by the Chief Commissioner of Income-tax (Karnataka, Goa and Kerala), Bangalore, by his order dated May 31, 1989. The annual return which is required to be furnished under the Act in respect of tax deducted at source were also furnished to the Income-tax Officer, Company Ward No. 4(1), Bangalore. ',
	(int) 2 => '<p>2. By a letter sent on February 11, 1993, to the petitioner on its failure to deduct tax at source for the guarantee commission credited to the account of Sri Vijay Mallya, director, for the year 1990-91, whose status is nonresident for the purpose of income-tax, the second respondent took the view that section 195 requires the company to deduct tax before making any payment of guarantee commission to Sri Vijay Mallya. The petitioner was called upon to pay the tax deducted at source along with interest at the rate prescribed under section 201 of the Act. The petitioner took the stand that section 195 of the Act would apply only when income is paid or credited to a non-resident. On the facts of the case, the guarantee commission has not accrued or arisen to the said Sri Vijay Mallya. The said Sri Vijay Mallya was not only a non-resident for the purpose of the Act, but was also a non-resident within the meaning of the Foreign Exchange Regulation Act, 1973 (for short, 'the F.E.R.A.'). It was explained that in view of the restriction under section 9 of the Foreign Exchange Regulation Act unless permission was obtained from the Reserve Bank of India, payment could not be made to the said Sri Vijay Mallya and, therefore, the income was not said to have accrued or arisen to attract the provisions of section 195 of the Act. The petitioner contended that until the Reserve Bank of India permitted the payment to be made no income could accrue to Vijay Mallya and, in the absence of such permission, mere entry in the profit and loss account debiting to the credit account of the said Vijay Mallya as guarantee commission is inchoate and is not crystallised as income. The petitioner could not assume that the Reserve Bank of India would definitely grant the permission and in the circumstances there was no liability to deduct tax at source. It is further submitted that subsequently permission of the Reserve Bank of India has been given to the petitioner to debit the account to the credit of the said Sri Vijay Mallya by way of guarantee commission, but by the time such approval came, the said Sri Vijay Mallya has ceased to be a non-resident for the purpose of the Act. It is contended that it is only on receipt of approval that payment could be made to the said Vijay Mallya and liability therefor arose and under section 195 of the Act, the status of the person to whose credit the income accrues is on the date on which the income is credited, if on the date the recipient has ceased to be a non-resident there was no liability to deduct tax. These contentions were rejected by the second respondent by a communication made on February 25, 1993. A revision petition was filed by the petitioner against the said action of the second respondent under section 264 of the Act and the commissioner dismissed the revision petition by his order made on August 13, 1993. That is how this matter is before this court in these petitions. ',
	(int) 3 => '<p>3. In these cases what is contended is the liability of the petitioner to pay the tax deducted at source, which according to it arose only when the guarantee commission has became payable to the said Vijay Mallya. The petitioner, therefore, has filed these petitions raising the following grounds : ',
	(int) 4 => '<p>(1) the only authority who could deal with matters connected with tax deducted at source in respect of the petitioner was the Income-tax Officer. Company Ward No. 4(1), Bangalore. The second respondent has no jurisdiction to call upon the petitioner to pay the tax deducted at source in relation to the payment of guarantee commission in terms of section 195 of the Act. ',
	(int) 5 => '<p> (2) Section 195 of the Act provides for an obligation to deduct tax at source in respect of certain payments made to non-residents and arises only where there is an income accrued in favour of the non-resident. Under section 9 of the Foreign Exchange Regulation Act, no person can make a payment to or for the credit of a non-resident except with the previous approval of the Reserve Bank of India and such approval had not been obtained by the petitioner as on the date when the notice was issued to the petitioner and so section 195 was not attracted. Any entry made in the books of account would not create a right to income on the part of the said Vijay Mallya inasmuch as the payee was not a non-resident when the amount was paid or the amount had not accrued to him. The entry was made only in the 'outstanding liability payable account' and that entry was made only to overcome the difficulty arising under section 9 of the foreign Exchange Regulation Act. Thereafter when the approval was given by the Reserve Bank of India on payment of the guarantee commission the said Vijay Mallya had become a resident, but not ordinarily resident and, therefore, the said payment fell outside the ambit of section 195 of the Act and so the tax could not be deducted on that date also. ',
	(int) 6 => '<p>4. Respondent Nos. 1 and 2 have filed statements of objections. It is set forth therein that the petitioner is a public limited company, which paid a guarantee commission of Rs. 8,80,596 for the assessment year 1989-90 and Rs. 13,96,580 during the assessment year 1990-91 to Sri Vijay Mallya, a non-resident under the Act. The assessing authority was of the view that section 195 of the Act was attracted to the payment and directed the petitioner to pay Rs. 2,64,179 and Rs. 4,18,974 by way of tax deducted at source at the rate of 30 per cent. from and out of commission due for the previous years relevant to the assessment years 1989-90 and 1990-91. The order on being challenged the revisional authority has upheld the same. ',
	(int) 7 => '<p>5. On the question of jurisdiction of the assessing authority to deal with the proceedings arising under section 195 of the Act it is submitted that notification dated May 31, 1989, cannot be read in isolation, but it must be read along with the original notification issued on March 30, 1989. The orders made thereto would be restricted to the Assessing Officers working under the jurisdiction of the Commissioners of Income-tax, Karnataka-I, II and III, only and does not include the Assessing Officers working under the jurisdiction of the Commissioner of Income-tax (Central), Bangalore. It is an admitted fact that the Assessing Officer for the petitioner is the Deputy Commissioner of Income-tax (Central Range), Bangalore. The Deputy Commissioner of Income-tax (Central Range), Bangalore, comes under the administrative as well as the statutory jurisdiction of the Director-General of Income-tax (Investigation), Bombay, which had not issued any notification taking away the tax deducted at source jurisdiction of the Assessing Officers of the Central Circle, Bangalore. It is, therefore, contended that the later notification dated May 31, 1989, had no effect of taking away the jurisdiction and powers of the Assessing Officers for the exercise of all the powers and functions vested in them in respect of all the assessees assigned to them. ',
	(int) 8 => '<p>6. On the merits of the matter, it is submitted that the petitioner had debited in its books of account the amount of guarantee commission payable to Vijay Mallya, a non-resident Indian at the relevant point of time, and credited a suspense account entry, namely, guarantee commission payable account. Such deductions were also claimed in the returns of income filed by the assessee for the assessment years 1989-90 and 1990-91 based on the aforesaid entries in the books of account. If really the liability to pay the guarantee commission had not accrued, there was no basis to claim deduction thereof from his profits. The permission of the Reserve Bank of India was granted to the petitioner in the month of March, 1992, and, therefore, it is submitted that the point of time at which the duty to deduct tax arises is determined by the provisions of the Act and not under the foreign Exchange Regulation Act and, therefore, it is contended that they were justified in passing the order under section 201 of the Act. ',
	(int) 9 => '<p>7. It is further contended that the petitioner-company having credited the guarantee commission payable account, the assessee ought to have deducted the tax at source and paid the same to the Central Government. Taxes to be deducted and paid would not constitute violation of section 9 of the Foreign Exchange Regulation Act and, therefore, such amount could have been paid and a clarification made by the Reserve Bank of India would also make it clear. It is submitted that the assessee did debit the books of account towards the guarantee commission on accrual basis and claimed the same by way of deduction while arriving at the income chargeable and, therefore, cannot blow hot and cold. It is contended that the permission of the Reserve Bank of India should not be mixed up with a liability to pay the amount in respect of which entries have been made in the books of account and deductions also had been sought for in the income of the company for the respective yeas and, therefore, it could not be interpreted that the guarantee commission had not accrued to the said Vijay Mallya. ',
	(int) 10 => '<p>8. In the light of these pleadings and contentions advanced before me the following points arise for consideration : ',
	(int) 11 => '<p>(1) As to the jurisdiction of the second respondent. ',
	(int) 12 => '<p> (2) The effect of section 9 of the Foreign Exchange Regulation Act on payments to be made. ',
	(int) 13 => '<p> (3) Applicability of section 195 of the Act to the guarantee commission payable to Vijay Mallya. ',
	(int) 14 => '<p>Point No. 1 : ',
	(int) 15 => '<p>9. Under section 127 of the Act power to transfer cases is provided. The Central Board of Direct Taxes, New Delhi, transferred the cases of the petitioner to the Central Circle from the Commissioner of Income-tax by an order dated August 27, 1981. From then onwards the cases of the petitioner are dealt with by the Central Circle. ',
	(int) 16 => '<p>10. The expression 'case' in section 127 has been the subject-matter of interpretation by the Supreme Court in CIT v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The meaning and content of 'case' has been explained. The effect of the said decision is that 'case' in relation to any person whose name is specified in the order of transfer means : ',
	(int) 17 => '<p>(i) All proceedings under the Act in respect of any year which may be pending on the date of transfer. ',
	(int) 18 => '<p> (ii) All proceedings to be instituted in future. ',
	(int) 19 => '<p>11. In Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) , it is said that the transfer of a case must be confined to a particular assessment year and sub-section 5(7A) contemplates the transfer of such a case, that is the assessment case for a particular year and there is no power to transfer any matter other than a case. Elaborating on this view expressed by the Supreme Court, it is contended for the petitioner that what is transferred by the Assessing Officer in the Central Circle is only the assessment and no other proceedings. But this argument ignores the effect of Explanation given in section 5(7A). As stated earlier, the word 'case' is used in a comprehensive sense for pending proceedings as well as for proceedings to be instituted in future. Consequently, an order of transfer can be validly made even if there is no proceeding pending and the purpose of transfer in such an event will simply be that all future proceedings have to take place before the Officer to whom the case of the assessee is transferred. ',
	(int) 20 => '<p>12. The effect of an order made under section 5(7A) has been considered by the Supreme Court in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , where it is noticed that when any case of a particular assessee which is pending before an Assessing Officer is transferred from that Officer to another Officer all proceedings which are pending against the assessee under the Act in respect of the same year as also the previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein so that the Assessing Officer to whom such a case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against an assessee in respect of any year. It means that the expression 'case' is equated to the file and what has been transferred by the Board on August 27, 1981, is the transfer of the file arising under the Act from the Commissioner of Income-tax, Karnataka, Bangalore to Central Circle, Bangalore. Thus, when there has been assignment of work under the orders of transfer to another Officer all proceedings in relation to that assessee get transferred whether pending or arising in future to the Assessing Officer. Therefore, I find great difficulty in accepting the contentions advanced on behalf of the petitioner. ',
	(int) 21 => '<p>13. Learned counsel for the petitioner sought to construct an argument on the language of the Rules, but those Rules will have to be understood in the light of the provisions arising under the Act. ',
	(int) 22 => '<p>14. Rule 36A provides that the returns in respect of tax deducted at source will have to be furnished to the Assessing Officer so designated by the Chief Commissioner or Commissioner of Income-tax within whose area of jurisdiction the office of the person responsible for the deduction of tax at source is situation or in any other case to the Assessing Officer within whose area of jurisdiction the office of the person responsible for the purpose of deduction of tax under Chapter XVII-B is situated. ',
	(int) 23 => '<p>15. So far as the petitioner is concerned, the Assessing Officer and the Commissioner of Income-tax come under the Central Circle and by reason of the order of the Board made on August 27, 1981, the entire filed of the petitioner stood transferred to the Central Circle. Therefore, whoever is the Officer designated by the Commissioner of Income-tax will be the prescribed officer to whom the petitioner will have to file returns in relation to tax deducted at source matters and in case such designated Officer is not available, to the Assessing Officer within whose area of jurisdiction the office of the person responsible for deducting tax is concerned. In the case of the petitioner, it is an officer coming under the Central Circle. Therefore, the contention raised on behalf of the petitioner in regard to the jurisdiction is untenable and the same shall stand rejected. I must, therefore, hold that the second respondent did have jurisdiction to deal with the matters involving section 195 and consequently the provisions of the Act. ',
	(int) 24 => '<p>Point No. 2 : ',
	(int) 25 => '<p>16. Except with the permission of the Reserve Bank of India no person in or resident in India shall make any payment to or for the credit of any person resident outside India. Section 9 includes not only any payment to be made or shall make any credit to any person resident outside India. The transactions in the present case are by book entries and certain amounts are sought to be debited in the books of account of the petitioner to the credit of Vijay Mallya who is a non-resident. So, the question for consideration is whether such payment or credit could be made except in accordance with the general or special permission granted by the Reserve Bank of India conditionally or unconditionally. In the present case such permission had been granted to the petitioner under section 9 of the Foreign Exchange Regulation Act, however subsequent to the date on which the actual entries were made. The question that arises for consideration is what is the effect of such a permission. ',
	(int) 26 => '<p>17. In Life Insurance Corporation of India v. Escorts Ltd. : 1986(8)ECC189 , the Supreme Court had occasion to consider the scope of section 29 of the Foreign Exchange Regulation Act for obtaining the permission of the Reserve Bank of India in regard to the establishment of business in India. The Supreme Court said that such a permission in the context of the Foreign Exchange Regulation Act being one enacted in the national economic interest should be viewed and construed from that perspective and a permission or an exemption granted will mean both permission granted previously or obtained subsequently, as long as he provision of law itself does not state that such permission should have been obtained previously. As seen earlier, section 9 of the Foreign Exchange Regulation Act does not state that such exemption should be obtained previously. Even if the permission is obtained subsequently the permission of the Reserve Bank of India should be treated as having retrospective effect. It is stated that whenever Parliament has thought fit, it has used the expression 'previous permission'. In sections 27(1) and 30, the expression 'permission' is qualified by the word 'previous' whereas in certain other provisions, the word 'previous' is not used and expression 'general or special' is used and remains unqualified. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying word in one provision and its non-use in another provision should not be disregarded. Parliament deliberately avoided the qualifying word 'previous' in section 9 of the Foreign Exchange Regulation Act so as to invest the Reserve Bank of India with a certain degree of elasticity in the matter of granting permission in making payments to non-residents or making credit to their account. Therefore, it must be held that the effect of obtaining permission subsequently would render the act to be ineffective. However, still the question arises whether on the date when the entries were made in the books of account they will have legal effect and would give rise to income to Vijay Mallya. Section 47 of the Foreign Exchange Regulation Act prohibits from entering into a contract or agreement which would directly or indirectly evade or avoid in any way the operation of the provisions of the foreign Exchange Regulation Act or of any rule, direction or order made thereunder. Section 9 of the Foreign Exchange Regulation Act totally prohibits the making of any payment or for the credit of any person resident outside India without the necessary permission as contemplated under the said provision. Though a resident outside India can file a suit for recovery of money without the permission of the Reserve Bank of Indian or the Central government, as the case may be, he should obtain permission for the recovery of the money. I must hold in this case that there was a liability arising as a result of the entries made in the books of account of the petitioner-company. The liability thereto being acknowledged by reason of the claim made in the deduction of the income for the relevant years would be that the income accrued for the relevant years. Therefore, the convention advanced on behalf of the petitioner that the income accrued only in the year when the permission of the Reserve Bank of India was granted would not be correct. A careful reading of section 47(2) of the Foreign Exchange Regulation Act would make it clear that such a claim had arisen as a result of a transaction which may be hit by section 9 of the Foreign Exchange Regulation Act but which could be regularised by obtaining the necessary permission before actually recovering the money when the income arises on the accrual basis. There is a definite liability so far as the petitioner is concerned as on the date when the relevant entries were made in the books of account. I am fortified by the decision of the Madras High Court in this regard in R. M. S. Shanmugham Chettiar v. Gian Change Kiet, : AIR1974Mad349 , particularly when the Supreme Court has interpreted he requirement to obtain permission either before or after the act is done, but at some stage before full effect is given to the same would only mean the liability that arises cannot be wiped away before the liability could be enforced. ',
	(int) 27 => '<p>18. It may be interesting to note that in Piara Singh v. Jagtar Singh, , it was held that acquisition of property by a person who is not a citizen of India without the prior permission of the Reserve Bank of India would not render the transaction void. The contravention of such provision would merely entail punishment and does not render the transaction void. ',
	(int) 28 => '<p>19. If permission had been obtained from the Reserve Bank of India, it is more than enough. The circumstance that the said Vijay Mallya had ceased to be a non-resident under the Act by the time the permission was given by the Reserve Bank of India under section 9 of the Foreign Exchange Regulation Act would not materially affect the liability arising pursuant to the entries made in the books of account of the petitioner-company in respect of which permission under section 9 of the Foreign Exchange Regulation Act had been sought for. In this view of the matter, I do not think it is necessary for me to refer to the various decisions referred to by learned counsel on either side as to when the liability in relation to deduction under section 195 of the Act would arise. It is clear even from the argument advanced on behalf of the petitioner that it arises only when there is a definite liability. On the interpretation given by me to sections 9 and 47 of the Foreign Exchange Regulation Act, such liability arises. Thus, the contention advanced on behalf of the petitioner that in view of the provisions of section 9 of the Foreign Exchange Regulation Act though entries have been made in the books of account no liability arose for the purpose of attracting the provisions of section 195 of the Act cannot be accepted. ',
	(int) 29 => '<p>Point No. 3 : ',
	(int) 30 => '<p>20. Chapter XVII provides for collection and recovery of tax under the Act. In the usual course after the order of assessment is passed the Assessing Officer will raise a demand by a notice in the prescribed form specifying the sum payable and such sum shall be payable by the assessee and under section 190, it is provided what notwithstanding that the regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction at source or by advance payment, as the case may be. These provisions are enacted for the purpose of easy collection of taxes and to avoid evasion thereof by suitable tailoring the account. Under section 195 of the Act the tax has to be deduced at source from interest or other payment made in the case of non-residents only. The liability thereto would arise only in respect of payment made by person to a non-resident. It certainly arises as soon as an entry is made in the books of account. In the present case, not only has credit been shown in favour of Vijay Mallya, but also debit entries have been made against the company and because of the difficulty arising under section 9 of the Foreign Exchange Regulation Act the same is kept under a separate heading nevertheless noting this liability arising under the transaction. Therefore, even on accrual basis it must be held that the liability to pay as on the date when the entries were made section 195 of the Act is attracted to the case. ',
	(int) 31 => '<p>21. Thus, I find no merit in these petitioners. These petitioners shall stand dismissed. Rule discharged. <p>',
	(int) 32 => '<p>'
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Subject	Direct Taxation
Court	Karnataka High Court
Decided On	Aug-26-1994
Case Number	Writ Petitions Nos. 38379 and 38380 of 1993
Judge	S. Rajendra Babu, J.
Reported in	ILR1994KAR3441; [1995]211ITR256(KAR); [1995]211ITR256(Karn)
Acts	Income Tax Act, 1961 - Sections 5(7A), 27(1), 30, 127, 195 and 264; Foreign Exchange Regulation Act - Sections 9 and 47(2); Constitution of India - Article 226
Appellant	United Breweries Ltd.
Respondent	Assistant Commissioner of Income-tax and Others
Appellant Advocate	G. Sarangan, Adv.
Respondent Advocate	H.L. Datta, Adv.

United Breweries Ltd. Vs. Assistant Commissioner of Income-tax and Others - Court Judgment