Appellant[[Income ]][[Tax ]]Through : Ms. Rashmi [Chopra,]Advocate v. Nhk Japan Broadcasting [Corporation

..- ,F IN THE HIGH COURT OF + ITA 168 OF 2011ITA 169 0F 2011ITA 188 0F 2011lrA 189 0F 2011 % IUDGMENT RESERVED ON: [19'O4'?Ql=1]tUOCtUenf OeU :11.5.2O11 (1) lrA 168 OF 2011 COMMISSIONER OF [ ][ ] . . . APPELLANT[ ][ ]Through : Ms. Rashmi [ChoPra,]Advocate. VERSUS NHK JAPAN BROADCASTING [..RESPONDENT]Through: Mr. Salil KaPoor, advocateSalil KaPoor, advocateKaPoor, advocate Mr. Salil KaPoor, advocateSalil KaPoor, advocateKaPoor, advocatewith Mr. Sanat [KaPoor,]Advocate. rTA 169 OF 2011(2) COMMISSIONER OF Ms. Rashmi . . . APPELLANT[ChoPra,]Advocate. Through : VERSUS NHKJAPAN BROADCASTING [..RESPONDENT] Through: Mr. Salil KaPoor, advocatewith Mr. Sanat KaPoor,Advocate. ITA 188 OF 2011(3) COMMISSIONER OF INCOME TAX Ms. Rashmi . . . APPELLANTChoPra,Advocate. Through : VERSUS rTA168/201 l,lrA 169/2011,1rA [188/2011,]ITA 189/20lL,lTA 190/20Ll.,lTA [l-86/201 ][1] Page 1 of 3 Signature Not Verified Digitally Signed By:AMULYACertify that the digital file andphysical file have been compared andthe digital data is as per the physicalfile and no page is missing. ( NHKJAPAN BROADCASTING [..RESPONDENT]Through: Mr. Salil KaPoor, advocateKaPoor, advocate Mr. Salil KaPoor, advocateKaPoor, advocatewith Mr. Sanat KaPoor,Advocate. (4) rTA 189 0F 2011 COMMISSIONER OF Ms. Rashmi . . . APPELLANTChoPra,Advocate. Through : VERSUS NHK JAPAN BRoADCASTING [..RESPONDENT]Through: Mr. Salil KaPoor, advocateSalil KaPoor, advocateKaPoor, advocate Mr. Salil KaPoor, advocateSalil KaPoor, advocateKaPoor, advocatewith Mr. Sanat KaPoor,Advocate. (s) rrA 190 0F 2011 COMMISSIONER OF Through : . . . APPELLANT Ms. Rashmi [ChoPra,]Advocate. VERSUS NHKJAPAN BROADCASTING [..RESPONDENT]Through: Mr. Salil KaPoor, advocateSalil KaPoor, advocateKaPoor, advocate Mr. Salil KaPoor, advocateSalil KaPoor, advocateKaPoor, advocatewith Mr. Sanat [KaPoor,]Advocate. lrA 186 OF 2O1L(6) COMMISSIONER OF Ms. Rashmi . . . APPELLANT[ChoPra,]Advocate. Through : VERSUS NHKJAPAN BROADCASTING [..RESPONDENT]Through: Mr. Salil KaPoor, advocateKaPoor, advocate Mr. Salil KaPoor, advocateKaPoor, advocatewith Mr. Sanat KaPoor,Advocate. rTAl.68/201 l,lTA 1.69/2011,1TA [188/2011,]ITA 189/2011,1TA 1902011,1TA [186/2011] Page 2 of 3 CORAM. :- HON',BLE MR. JUSTICE A.K. HON'BLE MR. JUSTICE M.L. 1. Whether Reporters of [Local ][newspapers ][may ][be]allowed to see theJudgment?allowed to see theJudgment? 2. To be referred to the Reporter [or ][not?]3. Whether the should be [reported ][in ][the]Judgment 3. Whether the should be [reported ][in ][the]Judgment Digest? A.K. SIKRI, I. 1. For orders, see ITA L64 [of ][2011.] MAY 11, 2011 skb MfsrKRr) (nk. srKRr)JUDGE JUDGEtu(M.L. MEHTA)JUDGE rrAr.68/201 r.,lTA 169/2011,1TA 188/2011, rrA r.89/201r.,1rA 190/2011,|TA [186/2011] i-i\ !I\I T[.IE !.flIGFI COURT OF DELH! hT NIEW DELHi ITA X64 0F 2011rTA 168 OF 2q11. rnA r.69 oF 2qr.1ITA 188 OF 2dfttTA LEg 0F 20XLtTA L90 0F'z(rln'tTA L86 0F 20lL + n 9.04.20111 % i(1) rT'A n64 OF 2O!.1iCOMMISSIOT{ER OF INCOME TAX; .".APPE[-Ll\htrMs. : Rashmi Chopra;, [Through ][:]' Advotate.VERSUS :.;NX{K.nApAN BROADCASTII\lG CORPORATIOIU ..RESPONDE[ST'. [Through: ]Mr. Salil l(apoor, advocatewith [j ]Mr. Sanat Kapoor,Advoeate.rT'A rL68 OF zOLX.(2) €oMMrssroNIER tf 'Tfr8,[H I^. Ms. i *rrn't""tSSTJfldvoIateVERSUS INr-rK JApAN BROADCASTTNG C@RPORATICJIV ..RESPOhIDIEIUTThrough: Mr. Splil Kapoor, advocatewith iMr. Sanat ['KaPoor,]Advocate.t(3) rrA n 69 OF 2011I.,I .i.coMMlssroNERoF[I\ncoMETAX I "..APPGLLAINTThrough : Ms. [^'1 ]Rashmi Chopra,Advocate. VERSUS lT A t6 4 I 20LL,lTA 1 6 B/2 0 1 1, ITA I 6 9/2 0 1 1, ITA 1 I 8/2 0 I 1,rrA 189/20r.1, rrA rdo/zor r,rrn 186/2011Page 1 of 13 li'r- -'-' -+ [-] ,^ lir: .t;i,t. +; !+- . r.t ;'ir; :: {'.$. + n 9.04.20111 % i(1) rT'A n64 OF 2O!.1iCOMMISSIOT{ER OF INCOME TAX; .".APPE[-Ll\htrMs. : Rashmi Chopra;, [Through ][:]' Advotate.VERSUS :.;NX{K.nApAN BROADCASTII\lG CORPORATIOIU ..RESPONDE[ST'. [Through: ]Mr. Salil l(apoor, advocatewith [j ]Mr. Sanat Kapoor,Advoeate.rT'A rL68 OF zOLX.(2) €oMMrssroNIER tf 'Tfr8,[H I^. Ms. i *rrn't""tSSTJfldvoIateVERSUS INr-rK JApAN BROADCASTTNG C@RPORATICJIV ..RESPOhIDIEIUTThrough: Mr. Splil Kapoor, advocatewith iMr. Sanat ['KaPoor,]Advocate.t(3) rrA n 69 OF 2011I.,I .i.coMMlssroNERoF[I\ncoMETAX I "..APPGLLAINTThrough : Ms. [^'1 ]Rashmi Chopra,Advocate. VERSUS lT A t6 4 I 20LL,lTA 1 6 B/2 0 1 1, ITA I 6 9/2 0 1 1, ITA 1 I 8/2 0 I 1,rrA 189/20r.1, rrA rdo/zor r,rrn 186/2011Page 1 of 13 li'r- -'-' -+ [-] ,^ lir: .t;i,t. +; !+- . r.t ;'ir; :: {'.$. N t-t K .!A[rANt ts,R OADCASTI IU G CORPO RAT',I C.PN! .. R,Es POIU DE NT i Through: Mr. Salil t(apooi, advocatewith i Mr. Sanat l(apoor,Advoiate. (4) lTA L88 OF 20n1 ,i': t coMMtsstoNER oF tl{coME TAX tl{coME TAX TAX .i I. " " APpE[-LAhtTThrough :, Ms. [- ],:. Rashmi Chopra,' Advocate.Through :, Ms. [- ],:. Rashmi Chopra,' Advocate. VERSUS i .l 'rCORPORATTOT{ ..RESpONDEfi\rT',Through: Mr. Sllil l(apoor, advocateSllil l(apoor, advocatel(apoor, advocateadvocatewith i Mr. Sanat Kapoor,Advo$ate. 'rNHK.IAPAN BROADCASTIT{G CORPORATTOT{ ..RESpONDEfi\rT',. Through: Mr. Sllil l(apoor, advocateSllil l(apoor, advocatel(apoor, advocateadvocate (s) .rT'l\ L89 OF.2O1I. ::COMMISSIONIEROFINCOMETAX ;[ tr, tr,...APPEI.LAhIT;[ tr,Ms. i Rastrmi Chopra,Advo'tate. ...APPEI.LAhIT Through : VERSUS i ' Ril{K.IAPAN i BROADCASTIT{G CORPORAT'IC)TV ..RESPONDENTThrough: wtr. S,.htil Kapoor, advocateS,.htil Kapoor, advocateKapoor, advocateadvocate wtr. S,.htil Kapoor, advocateS,.htil Kapoor, advocateKapoor, advocateadvocatewith ['i ]Mr. Sanat Kapoor,Advocate, (6) lllA lLgO OF 201,3. COMMISSIOINER OF INCOME TAX ,ij . APPELLAIUT,l " . Ms. 'i Rashmi Chopra,Advodate Through : VERSUS i ,1NHK JAFTAN BROADCASTIIVG CORPORATIOrU ..RESpOtUDElUTThrough: Mr. S,alil Kapoor, advocateS,alil Kapoor, advocateKapoor, advocateadvocate ,1..RESpOtUDElUTMr. S,alil Kapoor, advocateS,alil Kapoor, advocateKapoor, advocateadvocatewith ; Mr. Sanat Kapoor,Advodate. (7) rTA rL86 OF 2Or"1COMMISSIOIVER OF INICOME TAX . . . APPELLAIUT tTA 164/20r.L,rTA l-68/2011-,tTA 169/20il.,tTA 188/2011,rrA 189/20il. [jTA ]r.90/2011,trA 186/20].1rrA 189/20il. [jTA ]r.90/2011,trA 186/20].1 Page 2 of L3 ({ i it" \.' I Ms. i RashmiChopra,Advogate. VERSUS I ; ;Nn-rK JAPAN BROADCASTTNIG CORPORAT|qnl ..RESpOlUDE[\rTThrough: Mr. S'alil Kapoor, advocateS'alil Kapoor, advocateKapoor, advocateadvocate Mr. S'alil Kapoor, advocateS'alil Kapoor, advocateKapoor, advocateadvocatewith 1 ! ^_Mr. Sanat Kapoor,Advoreate.\l CORAM :. Ftontr'BLE MR. .f IJSTICE A.K. StKRt iHOIU'ELE NlR. JUSTICE M.L. [vlEHTA [,ii] .': .':1. Whether Reporters of Local ifewspapers may beallowed to see theJudgment? .iallowed to see theJudgment? .i2. To be referred to the Reporter or not? 3. Whethei the Judgmeni should'ibe reported in thej. [Digest? ] A.K. S[KRI, I. 'ii 1. The respondent assessee which is aj Public Broadcasting:;,Company [of ]Japan [(and, ][therefore, naturially ]a [Non-Resident]Company) is treated as an assessee in, default under theprovisions of Section 201 and 201 (1) and 201 (1A) of the IncomeTax Act (hereinafter referred to as 'the Act'), i, ':,',) ',). Before we spell out the exact nature of defaul't'attributed to;,the assessee, we deem it apposite to recountlthe facts in brief. i The respondent, N.HK Japan is a govefnment owned public;ibroadcasting company of Japan having neil,s bureaus in manycountries including India. The respondent natO deputed expatriate ' Page 3 of L3 . [rTA ][189/20L1,tTA ][190/201I,|TA ][186/2011] q 3. Whethei the Judgmeni should'ibe reported in thej. [Digest? ] A.K. S[KRI, I. 'ii 1. The respondent assessee which is aj Public Broadcasting:;,Company [of ]Japan [(and, ][therefore, naturially ]a [Non-Resident]Company) is treated as an assessee in, default under theprovisions of Section 201 and 201 (1) and 201 (1A) of the IncomeTax Act (hereinafter referred to as 'the Act'), i, ':,',) ',). Before we spell out the exact nature of defaul't'attributed to;,the assessee, we deem it apposite to recountlthe facts in brief. i The respondent, N.HK Japan is a govefnment owned public;ibroadcasting company of Japan having neil,s bureaus in manycountries including India. The respondent natO deputed expatriate ' Page 3 of L3 . [rTA ][189/20L1,tTA ][190/201I,|TA ][186/2011] q employees from Japan for working in its (:ffice in India. Theililexpatriates were receiving salary in India arfO a portion of salaryand allowances in Japan, Under the law in Japan, citizens/nationalsiof Japan are liable to levy of an annual munijcipal Citizen Tax alsoand allowances in Japan, Under the law in Japan, citizens/nationalsiof Japan are liable to levy of an annual munijcipal Citizen Tax alsoreferred to as Inhabitant tax which is cfraige'd on account of beingan inhabitant of Japan. In case a Japanesi citizen is renderingservices in an employment in Japan or anro$d on a transfer fromiJapan [for ][which he ][receives ][any salary ]in Jappn,'the citizen tax foria year in which he was in Japan on the first day of January of thatyear is required to be withheld . by his Lrptoy". from suchiemployee's salary income in Japan and [aid direcily to the:,.an inhabitant of Japan. In case a Japanesi citizen is renderingservices in an employment in Japan or anro$d on a transfer fromiJapan [for ][which he ][receives ][any salary ]in Jappn,'the citizen tax foria year in which he was in Japan on the first day of January of thatyear is required to be withheld . by his Lrptoy". from suchiemployee's salary income in Japan and [aid direcily to the:,.concerned Municipality. NHK, was accoroirqolv, withholding andjpaying over to the concerned municipal auithority in Japan, thejpaying over to the concerned municipal auithority in Japan, thecitizen's tax levied under the Japanese lur*, Ifrom the salaries'i'ipayable by it in Japan to its expatriate emOloiees assigned by it toIIits news bureau in India. The citizen tax withheld from the salariesin accordance with the law in Japan was clai,lned to be excludible:iin accordance with the law in Japan was clai,lned to be excludible:iand deductible in the computation of seilary intome of theemployees liable to tax in lndia..,1employees liable to tax in lndia..,1 'l 'lThe AO passed order under Section 201 (f)and 201 (1A) ofthe Act on 16th December, L999 for the Finapcialyear 1988-89 to:tdeduction and rTA l.64/201r.,rTA 168/20LL,tTA 169/20LL,ITA 118/20l.t,ITA 189/2011,1TA r.90/201L,tTA 186/2011ITA 189/2011,1TA r.90/201L,tTA 186/2011 Page 4 of L3 n.lrjt,Irl --: i r-l,"- .'l I .i"l i imade additions by working out the differencE of additional tax andIinterest taking into account (i) number of wcjrk -lIdays outside IndiaI(ii) Citizen tax and (iii) Housing norm.i; i iOn appeal before the Commissioner of jlncome Tax (Appeals)it was held that citizen tax is a statutory levyl in Japan on Japaneselcitizens and that such tax constitutes an ovdrriding charge on the;salary income and therefore the same hab 'ito be excluded incomputation of taxable. income. On the issile of assessee beingi'held to be in default uls ZOL (1) and 201 (fA) and housing norm,ldeduction, the matter was decided against ttle assessee. The CITi(A) decided the appeals for 11 financial yedrs i.e. Fy 19BB-89 to1998-99 by way of a common order dated 30{n March, 2001. i n.lrjt,Irl --: i r-l,"- .'l I .i"l i imade additions by working out the differencE of additional tax andIinterest taking into account (i) number of wcjrk -lIdays outside IndiaI(ii) Citizen tax and (iii) Housing norm.i; i iOn appeal before the Commissioner of jlncome Tax (Appeals)it was held that citizen tax is a statutory levyl in Japan on Japaneselcitizens and that such tax constitutes an ovdrriding charge on the;salary income and therefore the same hab 'ito be excluded incomputation of taxable. income. On the issile of assessee beingi'held to be in default uls ZOL (1) and 201 (fA) and housing norm,ldeduction, the matter was decided against ttle assessee. The CITi(A) decided the appeals for 11 financial yedrs i.e. Fy 19BB-89 to1998-99 by way of a common order dated 30{n March, 2001. i Against the order of CIT (A); .11 uOOu5,, were filed by the.:.:assessee before the ITAT on the grounOs bt assessee being iniidefault, housing norm deduction and . alir additional groundIIregarding orders for FY 1988-89 to 1994195 being barrecl byIlimitation. LL appeals were filed by the Revjenue before the lrAT'iIlimitation. LL appeals were filed by the Revjenue before the lrAT'ion issue of citizen tax deduction. . All apperjr *ur" decided by afcommon order dated 10th March, 2006. ]fhu appeals of the:''assessee were allowed and those of the Revi:nue were dismissed.fcommon order dated 10th March, 2006. ]fhu appeals of the:''assessee were allowed and those of the Revi:nue were dismissed.orders for FY 1988-89 to 1994-95 were trdto as invalid on theground of limitation and for FY 19g5-96 to ri'bga-99 assessee wasTI:t'IITA 1 64/201 1, tTA 1 68/20 L L,tTA 1 69/2 0 lL,tTA 188/201 1,Iground of limitation and for FY 19g5-96 to ri'bga-99 assessee wasTI:t'IITA 1 64/201 1, tTA 1 68/20 L L,tTA 1 69/2 0 lL,tTA 188/201 1,IrrA r-89/20l.L,trA rgo/zori,rra LB6/2011IPage 5 of 13.t'.i,.1i1I:I.t'.i,.1i1I:I ' /'1'. , :r' \-\ , {7, I /l' '{. held not to be in default. The Tribunal uphelp tne Commissioner'sorder on citizen tai issue, ifhe Revenue fiied 22 appeals in this Ccigrt against the above'{mentioned orders of the ITAT, which .werej all dismissed. Thisli'Court vide orders dated 30th Marcn,2OOT dn 11 appeals by theirevenue on citizen tax issue dismissed if'.t" same basing itsidecision on the [judgment ]of the Supreme CoUrt in the case of CITiVs. Sitaldas Tirathdas [1961] 4I ITR 36',7. Vide tia separateorders dated aa-r 23'd April, 2008, other 11 gOOuutr ifiled by theRevenue on the issue of order under Sectionj20l (1) and 201 (1A).iwere dismissed on the ground tlrat action waF barred by limitation.IThe Revenue went in appeal before the SUpreme Court in twobatches. In the 1't batch, it agitated the citizen tax issue and in,lthe.2no batch, it challenged the issue of limitation. The Supreme'Court vide orders dated 16th March, zoO8i in the l,t batch ofIappeals directed the Tribunal to consider;the matter rl.: .afresh in.taccordance with law as regard citiizen taXx trissue. lt would be1pertinent to quote the exact direction given Py ilre supreme courtjin the aforesaid order as much turns on tlroseldirections:- ' t'Without going into the merits gf the case,suffice it to state that in the presJent case, inour view, the Commissioner (Appeals) oughtto have examined the scope of tJre Japanese jitrA 164/2oLt,trA 168/20'1L,trA 169/2o1L,trA 188/201r, irrA lag/2o1r,trA l-90/2oLl.,trA LB6/2011 i page 6 of 131,ft; I,iltrx law, namely, Citizens lndividual lnirabitant TaxAct. ln the letter of appointment ibsued, thereis a reference to the words. ljhe relevantClause reads as under: { "Tour emoluments shall be q,lubject todeduction of taxes as per applicablelaws" and the tax liability ion host. country (lndia) shall be biorne by. NHK-'JapanBroadcasting Corpirration." ' t'Without going into the merits gf the case,suffice it to state that in the presJent case, inour view, the Commissioner (Appeals) oughtto have examined the scope of tJre Japanese jitrA 164/2oLt,trA 168/20'1L,trA 169/2o1L,trA 188/201r, irrA lag/2o1r,trA l-90/2oLl.,trA LB6/2011 i page 6 of 131,ft; I,iltrx law, namely, Citizens lndividual lnirabitant TaxAct. ln the letter of appointment ibsued, thereis a reference to the words. ljhe relevantClause reads as under: { "Tour emoluments shall be q,lubject todeduction of taxes as per applicablelaws" and the tax liability ion host. country (lndia) shall be biorne by. NHK-'JapanBroadcasting Corpirration." Analysing the said Clause one n.lrOs that theemoluments paid by the assesseeiwas subjectto deduction of tax as per applicable laws.emoluments paid by the assesseeiwas subjectto deduction of tax as per applicable laws.Therefore,. in our view, Crpmmissioner(Appeals) ought to have exqmined the| ..\.r)provisions of Citizens Individual Inhabitant TaxAct which is a Japanese law andj it ought tohave analysed the piovisions Af that law,| ..\.r)provisions of Citizens Individual Inhabitant TaxAct which is a Japanese law andj it ought tohave analysed the piovisions Af that law,particularly, when it was requir(d to decidethe question as to nature of the l$vy being anoverriding charge on the salaryf income, asstated hereinabove. The contro{ersy in thethe question as to nature of the l$vy being anoverriding charge on the salaryf income, asstated hereinabove. The contro{ersy in thepresent case is that citizens tax is a statutorylevy in Japan on the Japanqse citizenslevy in Japan on the Japanqse citizensconstituting an overriding chargg. lf it is anoverriding charge then of 'bourse theCommissioner (Appeals) was right in sayingthat it would not be an income.'iHowever, inour view, since the provisions of tjhe Act haveCommissioner (Appeals) was right in sayingthat it would not be an income.'iHowever, inour view, since the provisions of tjhe Act havenot been examined, the matter ireeds to beconsidered afresh Tribunal.by thgl Accordingly, we remit the mafter to theTribunal for fresh consideration ini accordance',,1'lwith law. We express no opinion oin the meritsof the case."by thgl Accordingly, we remit the mafter to theTribunal for fresh consideration ini accordance',,1'lwith law. We express no opinion oin the meritsof the case." It is clear from the above that the Suprqme Court was of theIview that issue at hand could not be decidgd without going intoithe specific provisions contained in Citizensj lndividual Inhabitant.lTax Act (hereinafter referred to as 'the Citizens ITaxAct') of Japan I1;ITA 164/2o11,tTA 168/2on,rA 169/2011,tTA t88l2ott, 'iITA 189/2011,tTA 190/201L,tTA 186/2011,1: Page 7 of 13 III:l'II;I.lll.II{.\,'t' .; r{ I and analyzing those . provisions. Since thei scope of aforesaid. 'liJapanese [law was ][not ][examined, ][the ][suprem.ie ][court ][remitted ]thecase back to the Tribunal for fresh consioei'ation "in accordanceIwith law" and to ascertain from the provisiorls of the citizens Tax'iAct as to whether the statutory levy in jlbpan constituted !iran:l'overriding charge. The supreme court maoe'l it clear that if it was,ian overriding charge, then it would not be anilncome..,i I1;ITA 164/2o11,tTA 168/2on,rA 169/2011,tTA t88l2ott, 'iITA 189/2011,tTA 190/201L,tTA 186/2011,1: Page 7 of 13 III:l'II;I.lll.II{.\,'t' .; r{ I and analyzing those . provisions. Since thei scope of aforesaid. 'liJapanese [law was ][not ][examined, ][the ][suprem.ie ][court ][remitted ]thecase back to the Tribunal for fresh consioei'ation "in accordanceIwith law" and to ascertain from the provisiorls of the citizens Tax'iAct as to whether the statutory levy in jlbpan constituted !iran:l'overriding charge. The supreme court maoe'l it clear that if it was,ian overriding charge, then it would not be anilncome..,i 3. When the matter reached back to Tribulnal, the parties wereIdirected to place on record copy of the afore'said citizens Tax Act'lIduly translated into English vide orders datbd 16rh March, 2009.,!The counsel for the assessee filed the copyiof the aforesaid Actalongwith its English translation but did.not tite ttre responsibilityilwith respect to the authenticity of its English {;-anslation. ln such asituation, the order dated 9th December, 20clg was passed by theITribunal directing the Departmental nelresentative of theiRevenue to place on record the copies of theprovisions translatedl\ into English. Even after seeking adjournmentd, the Revenue failed.'lto file the translated copy of the relevant Fjrovisions of the saidAct. This posed a dilemma in the minds or the Tribunal. on theI{one hand, ther€ was a direction given by thle supreme Court toidecide the issue with reference to the provisions of the citizens ITA l.89/2011,tTA 1 90/201L,tTA 186/2011 Page B of L3 ; 'tJ\ ,A.i{'i i ./\.1.'I :i1liTax Act and on the other hand, the Tribunal iielt helpless as it wasunable to proceed unless the authenticatedl copy of the Englislritranslation version the said Act was pro$uced before it. The_of Tribunal was conscious of the directions giten by the SupremeICourt which is specifically taken note in Oarja a of the impugnedorder. However, two reasons prevailed in thej mind of the TribunalIwhich led to passing of the impugned order dismissing the appeal.iof the Revenue namely: :jri ri(i) As already pointed ou$ above, thedepartment failed to placef on record theEnglish version of the Citizeiis Tax Act in theabsence of which it'becami impossible forthe Tribunal,to decide the is$ue.department failed to placef on record theEnglish version of the Citizeiis Tax Act in theabsence of which it'becami impossible forthe Tribunal,to decide the is$ue. t which ['r'r"ufirv ]weish withthe Tribunal was the subsecfuent decision ofthe Supreme Court itself ,whereby it hadthe Supreme Court itself ,whereby it had, upheld the quashing of the orders passedunder Section 201.(1) ancti ZOf 11A) of theAct. From this, the Tribunajl concluded thatit would be a futile exercise lo determine theissue namely whether the pitizens Tax Acthad an overriding charge llover the salaryincome of the assessee or not.under Section 201.(1) ancti ZOf 11A) of theAct. From this, the Tribunajl concluded thatit would be a futile exercise lo determine theissue namely whether the pitizens Tax Acthad an overriding charge llover the salaryincome of the assessee or not. 14. ln so far as first reason given by the f,ribunal is concerned,-*1no doubt, the Tribunal felt helpless to deterlnine the issue as per.direction of the Supreme Court for no fault otlits own. Normally, insuch a situation, it could have asked the otl;rer party namely thetassessee to approach the Supreme Court for variations of the 1'IIfTA r-641201-1,rTA r.68/20r-1,rTA 169/2011,tTA L88l20Lr,irTA r.89/20L l,tTA r.90/2011,tTA 186/201.1JPage 9 of L3Ih"lI.il'i,II'!i,I'lt'1 t-_lI;I li; fi i tdirections given by the Supreme Court in lits order dated 16th'I!March, 2OOg inasmuch as, the Tribunal is bo{nd to carry out suchdirections. However, if the second ground qiven by 11the Tribunal.. I ihas merit, there may not be'any fault with,{the impugned ordbr"tpassed by the Tribunal, therefore, w€ prodeed to examine theveracity of the second ground taken by the trjiOunat,f! l( ll 1'IIfTA r-641201-1,rTA r.68/20r-1,rTA 169/2011,tTA L88l20Lr,irTA r.89/20L l,tTA r.90/2011,tTA 186/201.1JPage 9 of L3Ih"lI.il'i,II'!i,I'lt'1 t-_lI;I li; fi i tdirections given by the Supreme Court in lits order dated 16th'I!March, 2OOg inasmuch as, the Tribunal is bo{nd to carry out suchdirections. However, if the second ground qiven by 11the Tribunal.. I ihas merit, there may not be'any fault with,{the impugned ordbr"tpassed by the Tribunal, therefore, w€ prodeed to examine theveracity of the second ground taken by the trjiOunat,f! l( ll Ti5. As pointed out above, there were tw$ Oatches of appealsii.b.efore the Supreme Court. l't batch was,f concerned with theCitizens Tax Act in which directions dated thtn Vlur.h, i:2009 werepassed by the Supreme Court, as noted uOJu". The 2nd batch of{. [appeals ][was ][concerned ][with ][the ][issue ][of ]llimitation. As [noted]Iabove, the orders in'respbtt of financial yea.lr 1988-89 to 1994-95were held to be invalid on the ground of timfi:ation by the Tribunalwhich order was upheld by this Court and Slpecial Leave Petitionwas' filed against that order. This natctr appeals was still,iff 'tpending. i';i6. ln the meantime, the question of nonl;deduction of tax atsource on overseas payments to expatriat"'f"rptoyees came up'lfor consideration before the Supreme - Cc{urt \.1in the case of.41Coimmlssianer of lncome Tax Vs. Eli l-iily & Co. Fvt. t-td.iltii'lIrTA 1 64/20 r. r-, rTA 168/201 1, tTA 169/2 0L L,tTA 188/201 1,I':j,rTA 189/20r1,rTA 190/2011,rA 186/2011nPage L0 of.13III.rlIjIIIII.1r. 'rli:-s--'- Ifl ti:. .:--\.li{I .. '/Yt- Ijlr(2009) 372 tTR 22. These cases included thef appeal pertaining to.1the present assessee also. When the 2nd blitch of appeals cameup for hearing before the Supreme Court, g(Ding li ,by the aforesaid/iiiorders dated 25s' March, 2009 in Eli Liilrt e Ca, (supra), the:iSupreme Court passed the following order,5 dated 2Oth lanLtary,.i[2010:- The following substantial questionlof law arises forconsideration in this batch of civil pRReats:- 't "Whether the Income Tafi Appellate- Tribunal was correct in lar,t{ in holdingthat the orders passed uncller Sectionsthat the orders passed uncller Sections' 20I(1) and 201(1A) of the income TaxAct, 1961 are invalid andl barred bytime having been passedl beyond areasonable 'i;period." 20I(1) and 201(1A) of the income TaxAct, 1961 are invalid andl barred bytime having been passedl beyond areasonable 'i;period." n Having heard learned counsel o',i both sides, weare of the view that, on .ithe facts andcircumstances of these cases, thei question on thepoint of limitation formulated byj the Income TaxAppellate Tribunal in the presend cases need notbe gone into for the simple [€tsison that, at the.relevant time, there was a debatQ on the questionas to whether TDS was deduqtible under theIncome Tax Act, 1961, on foreigr.i salary paymentas a component of the total salary paid to anexpatriate working in lndia? ['[-his ]controversycame to an end vide judgment ofithis Court in thecase of Commissioner of Income'iax Vs. Eli Lilly &Co. (lndia) Pvt. Ltd., reported ini (2009) 3LZ tTR. 2235. The questlon on Iirnitatition has becomeacaden'lic !n these cases foecause, evenassun'ling that the Depaftmen{ is niElrt on the ,i.lI. rlr';l'ttlPage 11 of L3 ITA 1 64/20 r- 1, tTA 168/20 t 1, tTA 169/201 1, tTA 1 88/20 1 1,ITA r. 19/201r.,tTA 190/20LL,tTA l.86/201 L :';l{.l.t"4I---ili.l Ir-l \' '{r Y i I ,i.lI. rlr';l'ttlPage 11 of L3 ITA 1 64/20 r- 1, tTA 168/20 t 1, tTA 169/201 1, tTA 1 88/20 1 1,ITA r. 19/201r.,tTA 190/20LL,tTA l.86/201 L :';l{.l.t"4I---ili.l Ir-l \' '{r Y i I Iissue Of limitation sti[[ tlre $uestion wouldarlse wfirethen on sutclr ddbatq'lole points, theassesbee (s) courld he ,i declared as. assessee9s) In default und$r Section L92nead with Section ZOL of the lircorne Tax Act,' ' L961. Further, we are informed that the assesseehave paid the differential tax. fhley have paid theinterest and they fu.rther underlbke not to claimrefund for the amounts paid. Bgfore concluding,we may also state that, in Eli Lilly,l& Co. (lndia) Pvt.. Ltd. (supra) vide paragraph 2I,l this Court hasclarified that the law laid down in the said case was' only applicable to the provisions pf Section 192 ofthe Income Tax Act, 1961. ,1, Leaving the question of law open on limitation,these civil gppeals filed by tFe Department aredisposed of with rio order as to cotts." rjil. lt is thus clear that the same Bench ilf the Supreme Court'i -which issued direction on 16th March, 2009:lpassed the aforesaidJorder making it emphatically clear thaf ;even the issue oflimitation had become academic as the as$essee could not bedeclared as assessee in default under Secition !g2 read withlSection 201 of the Act. The fallout of the iiforesaid order dated2Oth Janu ary, 2OLO is that the Supreme'Co!rt has held that theiassessee for the assessment years in questiQn, cannot be treatedas assessee in default. The consequence wfould be to quash the'l.llproceeding initiated by the AO treating thF assessee to be inIdefault under Section 201 (1) and 201 (1A) of the Act.i{'ji,lIIil i':l'lITA r- 64/20 1 1, tTA r-68/201 1, tTA 169/20 1 1, tTA 188/20 I 1,rlITA l. 89/20r.r., ITA L90/20L1,tTA tA6l20LtIPage 12 of 13rl'i1'1..l i,l.l;1{r,'t{rirlII.l;1{r,'t{rirlII rlII__.*____*--.*---.'t----'-_.t_ *---.'t----'-_.t_ It;tttrt;tttr {-,t'.\ !i 'ti 'lI7. We, thus agree with the Tribunal that tfre issue had becomeIacademic in nature and there was no r."u='bn left to decide [this],:issue. This happened because of the subdequent order of the,!Supreme Court itseif. This resulted as 6 [,lconsequence ]of the"!,lorders passed by the Supreme Court, that tcJo, in the case of thisvery assessee perrarrrertaining tro the rne upp"ut, ii'.r" assdssment years"t 1on the same question. We thus find no mprit in these appeals'Iwhich are dismissed on this ground alone. I i{,4ii .li a^w1r"*<{l tl\-"l.lz!-->--ti I tn-r. [srKRI)].lt'!DGE' | tiLa"^-eo*(M.L. MEHII.A)JUDGEI.l-.iiiti I tn-r. [srKRI)].lt'!DGE' | tiLa"^-eo*(M.L. MEHII.A)JUDGEI.l-.iii MAY LL, 20Lnskb iIIIPage 13 of 13{ trA 164/20i.r.,tTA r.68/201r.,tTA 169/2011,tTA 188/2011,tTA 189/201 r.,tTA r-90/20r.r.,tTA 186/20r.1