Shri Krishnaswami Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
- sections 192, 9 (1)(ii), explanation, 201,271-c and 273-b:[s.h. kapadia & aftab alam, jj] salary income - tax deducted at source (t.d.s.) payment made abroad by foreign company to its expatriate who had rendered services in india applicability of t.d.s. provisions held, section 9(1)(ii) of the act enacts that income chargeable under the head salaries under section 15 shall be deemed to accrue or arise in india if it is earned in india, i.e., if the services under the agreement of employment are or were rendered in india, the place or receipt or actual accrual of the salary being immaterial. thus, section 192(1) has to be read with section 9(1)(ii). from the above analysis two conclusions flow. firstly, it cannot be stated as broad proposition that the tds provisions which are in the nature of machinery provisions to enable collection and recovery of tax are independent of the charging provisions which determines the assessability in the hands of the employee-assessee. secondly, whether the home salary payment made by the foreign company in foreign currency abroad can be held to be deemed to accrue or arise in india would depend upon the in-depth examination of the facts in each case. if the home salary/special allowance payment made by the foreign company abroad is for rendition of services in india and if as in the present case no work was found to have been performed for the said foreign company then such payment would certainly come under section 192(1) read with section 9(1)(ii). hence, when the post-survey operations revealed that no work stood performed for the foreign company by the four expatriates to the joint venture company in india and that the total remuneration paid was only for services rendered in india, in such a case the tax-deductor assessee was statutorily obliged to deduct tax under section 192(1) of the income tax act. consequently, if any payment of income chargeable under the head salaries falls within section 9(1)(ii) then tds provisions would stand attracted. therefore, the tax deductor assessee were duty bound to deduct tax at source under section 192(1) from the home salary/special allowance (s) paid abroad by the foreign company, particularly when no work stood performed for the foreign company and the total remuneration stood paid only on account of services rendered in india during the period in question. a perusal of section 201(1) and section 201(1a) shows that both these provisions are without prejudice to each other. it means that the provisions of both the sub-sections are to be considered independently without affecting the rights mentioned in either of the sub-sections. hence the supreme court directed the assessing officer (a.o.) to examine each case to ascertain whether the employee-assessee (recipient) has paid the tax due on the home salary / special allowances received from the foreign company. in case taxes due on home salary/special allowance(s) stands paid off then the ao shall not proceed under section 201(1). in cases where the tax has not been paid, the ao shall proceed under section 201(1) to recover the shortfall in the payment of tax. similarly, the ao shall examine and find out whether interest has been paid/recovered for the period between the date on which tax was deductible till the date on which the tax was actually paid. if, in any case, interest accrues for the aforestated period and if it is not paid then the adjudicating authority shall take steps to recover interest for the aforestated period under section 201(1a). section 273-b states that notwithstanding anything contained in section 271c, no penalty shall be imposed on the person or the assessee for failure to deduct tax at source if such person or the assessee proves that there was a reasonable cause for the said failure. therefore, the liability to levy of penalty can be fastened only on the person who do not have good and sufficient reason for not deducting tax at source. only those persons will be liable to penalty who do not have good and sufficient reason for not deducting the tax. the burden, of course, is on the person to prove such good and sufficient reason. in the instant case non-deduction of tax at source took place on account of controversial addition. the concept of aggregation or consolidation of the entire income chargeable under the head salaries being eligible to deduction of tax at source under section 192 was a nascent issue. it has not been considered by supreme court before. further, in most of these cases, the tax-deductor assessee has not claimed deduction under section 49(1)(iii) in computation of its business income. this is one more reason for not imposing penalty under section 271c because by not claiming deduction under section 40(a)(iii), in some cases, higher corporate tax has been paid. accordingly penalty proceedings under section 271c were quashed. - (1) sub-section (1) of section 3 of the judges (inquiry) act, 1968, mandates that the speaker of the house of the people shall either admit or refuse to admit a motion for presenting an address to the president of india for the removal of a judge of the supreme court of india only 'after' considering such materials, if any, as may be available to him and failure to comply with the said sine-qua-non, viz. 3, who thereby departed from the well established practice and hence the consultation of the committee is clearly vitiated in law. air1992sc320 the proceedings which took place in the house of the people were not before it, which proceedings, now available, clearly indicate that the speaker himself was alive to the fact that he was constitutionally obligated to place the notice before the house and his decision on the admission of the notice was to depend on the collective wisdom of the house.ordera.m. ahmadi, k. jayachandra reddy and g.n. ray, jj.1. during the course of the hearing of this petition mr. kapil sibal urged the following contentions for our consideration:(1) sub-section (1) of section 3 of the judges (inquiry) act, 1968, mandates that the speaker of the house of the people shall either admit or refuse to admit a motion for presenting an address to the president of india for the removal of a judge of the supreme court of india only 'after' considering such materials, if any, as may be available to him and failure to comply with the said sine-qua-non, viz., consideration of available material before admitting the motion, vitiates his decision for non-application of mind. in the present case since the then speaker, respondent no. 3, is not shown to have applied his mind to the available material before admitting the motion, his decision to admit the motion and constitute the committee comprising respondents nos. 4, 5 and 6 is unsustainable in law. (2) sub-section (2) of section 3 of the judges (inquiry) act, 1968, invests the speaker with the power to constitute a committee for the purpose of making an investigation into the grounds on which the removal of the judge is sought but such power must be exercised consistently with the established practice and norm and consistently with the ideal of independence of the judiciary, after consulting the chief justice of india. in the present case all the three committee members were directly approached by the speaker, respondent no.3, who thereby departed from the well established practice and hence the consultation of the committee is clearly vitiated in law.(3) although sub-section (1) of section 4 of the judges (inquiry) act empowers the committee to regulate its own procedure in making the investigation, which procedure must be consistent with the rules of natural justice, the committee has not outlined any procedure for investigation and the procedure it has hitherto followed in framing charges without undertaking any preliminary investigation to ascertain if there is sufficient prima facie material for framing a charge and in refusing to provide the concerned judge with copies of documents sought on unsustainable grounds and in permitting third parties to assist the committee through its counsel against the judge and in not permitting the petitioner to assist the committee to establish the innocence of the judge, the committee has completely mutilated the 'ruijuris' character of the investigation and thereby rendered the proceedings illegal and wholly inconsistent with the principles of natural justice.(4) if the provisions of sub-sections (3) and (4) of section 3 are read to mean that they empower the committee to frame charges without holding a preliminary investigation at which the concerned judge may participate, the said two sub-sections would be rendered ultra wires article 124(5) of the constitution. (5) when the constitution bench decided the case sub-committee on judicial accountability v. union of india and ors. : air1992sc320 the proceedings which took place in the house of the people were not before it, which proceedings, now available, clearly indicate that the speaker himself was alive to the fact that he was constitutionally obligated to place the notice before the house and his decision on the admission of the notice was to depend on the collective wisdom of the house. in view of this factual aspect reflected in the proceedings of the house, the decision of the constitution bench needs reconsideration.having heard mr. sibbal we direct notice to issue to respondents nos. 1, 3 and 7. we also direct notice to issue to the learned attorney general. all the notices will be returnable on 10.3.1992. in addition to usual mode of service we permit dasti service. the notices will set out the contentions to enable the concerned respondents to respond, if they so desire. no stay.2. having regard to the importance of the questions raised in the petition, we direct the registry to place the papers before the learned chief justice of india for constituting a constitution bench to hear this petition.

Judgment:
ORDER

A.M. Ahmadi, K. Jayachandra Reddy and G.N. Ray, JJ.

1. During the course of the hearing of this petition Mr. Kapil Sibal urged the following contentions for our consideration:

(1) Sub-section (1) of Section 3 of the Judges (Inquiry) Act, 1968, mandates that the Speaker of the House of the People shall either admit or refuse to admit a motion for presenting an address to the President of India for the removal of a Judge of the Supreme Court of India only 'after' considering such materials, if any, as may be available to him and failure to comply with the said sine-qua-non, viz., consideration of available material before admitting the motion, vitiates his decision for non-application of mind. In the present case since the then Speaker, respondent No. 3, is not shown to have applied his mind to the available material before admitting the motion, his decision to admit the motion and constitute the Committee comprising respondents Nos. 4, 5 and 6 is unsustainable in law.

(2) Sub-section (2) of Section 3 of the Judges (Inquiry) Act, 1968, invests the Speaker with the power to constitute a Committee for the purpose of making an investigation into the grounds on which the removal of the Judge is sought but such power must be exercised consistently with the established practice and norm and consistently with the ideal of independence of the judiciary, after consulting the Chief Justice of India. In the present case all the three Committee members were directly approached by the Speaker, respondent No.3, who thereby departed from the well established practice and hence the consultation of the Committee is clearly vitiated in law.

(3) Although Sub-section (1) of Section 4 of the Judges (Inquiry) Act empowers the Committee to regulate its own procedure in making the investigation, which procedure must be consistent with the rules of natural justice, the Committee has not outlined any procedure for investigation and the procedure it has hitherto followed in framing charges without undertaking any preliminary investigation to ascertain if there is sufficient prima facie material for framing a charge and in refusing to provide the concerned Judge with copies of documents sought on unsustainable grounds and in permitting third parties to assist the Committee through its counsel against the Judge and in not permitting the petitioner to assist the Committee to establish the innocence of the Judge, the Committee has completely mutilated the 'ruijuris' character of the investigation and thereby rendered the proceedings illegal and wholly inconsistent with the principles of natural justice.

(4) If the provisions of Sub-sections (3) and (4) of Section 3 are read to mean that they empower the Committee to frame charges without holding a preliminary investigation at which the concerned Judge may participate, the said two Sub-sections would be rendered ultra wires Article 124(5) of the Constitution.

(5) When the Constitution Bench decided the case Sub-Committee on Judicial Accountability v. Union of India and Ors. : AIR1992SC320 the proceedings which took place in the House of the People were not before it, which proceedings, now available, clearly indicate that the Speaker himself was alive to the fact that he was constitutionally obligated to place the notice before the House and his decision on the admission of the notice was to depend on the collective wisdom of the House. In view of this factual aspect reflected in the proceedings of the House, the decision of the Constitution Bench needs reconsideration.

Having heard Mr. Sibbal we direct notice to issue to respondents Nos. 1, 3 and 7. We also direct notice to issue to the learned Attorney General. All the notices will be returnable on 10.3.1992. In addition to usual mode of service we permit Dasti Service. The notices will set out the contentions to enable the concerned respondents to respond, if they so desire. No stay.

2. Having regard to the importance of the questions raised in the petition, we direct the Registry to place the papers before the learned Chief Justice of India for constituting a Constitution Bench to hear this petition.