Commissioner Of Income Tax v. Nhkjapan Broadcasting Corporation

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI IUDGMENT RESERVED ON: 19.O4.2OL1JUDGMENT [: ][L1'5.2O11] (1) rrA 168 OF 2011 COMMISSIONER OF INCOME TAX VERSUS NHKJAPAN BROADCASTING CORPORATION [..RESPONDENT]Mr. Salil KaPoor, advocateThrough: with Mr. Sanat Kapoor,Advocate. (2) rrA 169 OF 2OL1 INCOME TAX. . . APPELLANTThrough :Ms. Rashmi Chopra,Advocate. COMMISSIONER OF INCOME TAX VERSUS NHK JAPAN BROADCASTING CORPORATION ..RESPONDENT Through: Mr. Salil KaPoor, advocatewith Mr. Sanat [KaPoor,]Advocate. lrA r.88 OF zot t(3) Ms. Rashmi . . . APPELLANTChoPra,Advocate. COMMISSIONER OF INCOME TAX :Through VERSUS lrA168/201 l,lTA 169/20LL,lTA [raal20Lr,]rrA r.89/201r.,rrA 190/201 l,lTA 186/2011 Page 1 of 3 NHKJAeAN ed,onocAsrtNc coRPoRATloN [..RESPoNDENT]Through: Mr. Salil Kapoor, advocateKapoor, advocateadvocate Mr. Salil Kapoor, advocateKapoor, advocateadvocatewith Mr. Sanat Kapoor,Advocate. (4) rrA 189 OF 2OL1 Ms. Rashmi . . . APPELLANTChopra,Advocate. COMMISSIONER OF INCOME TAX' :Through VERSUS NHK JAPAN BROADCASTING CORPORATION .,RESPONDENTThrough: Mr. Salil Kapoor, advocateSalil Kapoor, advocateKapoor, advocateadvocate Mr. Salil Kapoor, advocateSalil Kapoor, advocateKapoor, advocateadvocatewith Mr. Sanat KaPoor,Advocate. rrA 19o oF 201L(s) Ms. Rashmi . . . APPELLANTChopra,Advocate. COMMISSIONER OF INCOME Through : VERSUS NHK JAPAN BROADCASTING [..RESPONDENT]Through: Mr. Salil Kapoor, advocateKapoor, advocateadvocate Mr. Salil Kapoor, advocateKapoor, advocateadvocatewith Mr. Sanat Kapoor,Advocate. rrA 186 OF zor.t(6) . . . APPELLANTMs.Rashmi Chopra,Advocate. COMMISSIONER OF INCOME TAX :Through VERSUS NHKJAPAN BROADCASTING CORPORATION ..RESPONDENT Through: Mr. Salil KaPoor, advocatewith Mr. Sanat KaPoor,Advocate, CORAM :-. HON',BLE MR. JUSTICE A.K. SIKRIHON'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. StKRl, l. 1. For orders, see ITA 164 of [2011.] MLSrKRr) (A.rc. SrKRr) MAY lL, 2O1Lskb @(M.L. MEHTA) [/]JUDGE tTA168/201 1,tTA 169/2011,t'rA lBB/2011, ITA 189/2011,tTA 190/2011,|TA L86l20rL Page 3 of 3 i^-: IN THE HIGH COURT OF DELHI AT NE:W DELHI rTA L64 0F 20r.L + rrA r.68 0F 20L1rTA 169 0F 201 1tTA L88 0F 20r.1tTA L89 0F 20L1. rrA r.90 0F 20LLtTA r.86 0F 20LL % , "f [ON: ][L9.O4.2OLL]J UDGMENT DELIVERED [ONl.: ][LL.5.2OLL] (1) rTA r.64 OF 2O1n . . . APPELLANTMs.Rashmi Chopra,Advocate. COMMISSIONER OF INCOME TAX . [[Through ]]: . [[Through ]]: Ms.Chopra,. Advocate.VERSUSNHK JAPAN BROADCASTTNG CORPORATTON ..RESPONDENT' Through: Mr. Salil Kapoor, advocateKapoor, advocateadvocate Mr. Salil Kapoor, advocateKapoor, advocateadvocatewith Mr. Sanat Kapoor,Advocate. (2) rTA L68 OF 2Or.1 coMMrssroNER oF tNcoMi I"*I"* Ms. Rashmi , . . APPELLANTChopra,Advocate. VERSUSNHK JAPAN BROADCASTTNG CORPORATTON ..RESpONDENTThrough: Mr. Salil Kapoor, advocateKapoor, advocateadvocate Mr. Salil Kapoor, advocateKapoor, advocateadvocatewith Mr. Sanat Kapoor,Advocate. (3) rTA L69 OF 2O1n . . APPELLANT" Ms. Raslrmi Chopra,Advocate. COMMISSIONER OF TNCOME TAX Through : VERSUS ITA 1 64/20 1 1, tTA 168/201 1, tTA 169/201 l,|TA 188/201 1,tTA 189/2011,tTA 190/2011,tTA 186/2011 NHKJAPAN BROADCASTTNG CORPORATTON ."RESPONDENT Mr. Salil Kapoor, advocatewith Mr. Sanat Kapoor,Advocate. Through: (4) rTA r.88 OF 20LL COMMISSIONER OF INCOME INCOME TAX . . , APPELLANTchopra'Xi;"..[?shmi OF INCOME INCOME , [rhroush ][: ] VERSUS NHK JAPAN BROADCASTTNG CORPORATTON ..RESpONDENT Through: Mr. Salil Kapoor, advocate' with Mr. Sanat Kapoor,Advocate. (s) rTA r.89 OF 20.11 . Mr. Salil Kapoor, advocateKapoor, advocateadvocatewith Mr. Sanat Kapoor,Advocate. (3) rTA L69 OF 2O1n . . APPELLANT" Ms. Raslrmi Chopra,Advocate. COMMISSIONER OF TNCOME TAX Through : VERSUS ITA 1 64/20 1 1, tTA 168/201 1, tTA 169/201 l,|TA 188/201 1,tTA 189/2011,tTA 190/2011,tTA 186/2011 NHKJAPAN BROADCASTTNG CORPORATTON ."RESPONDENT Mr. Salil Kapoor, advocatewith Mr. Sanat Kapoor,Advocate. Through: (4) rTA r.88 OF 20LL COMMISSIONER OF INCOME INCOME TAX . . , APPELLANTchopra'Xi;"..[?shmi OF INCOME INCOME , [rhroush ][: ] VERSUS NHK JAPAN BROADCASTTNG CORPORATTON ..RESpONDENT Through: Mr. Salil Kapoor, advocate' with Mr. Sanat Kapoor,Advocate. (s) rTA r.89 OF 20.11 . . . . APPELLANTMs. Rashmi Chopra,'Advocate. COMMISSIONER OF INCOME TAX Through : VERSUS NHKJAPAN BROADCASTTNG CORPORATTON ..RESPONDENT Through: Mr. Salil Kapoor, advocatewith Mr. Sanat Kapoor,Advocate. (6) rTA 19O OF 201LcoMMrssroNER oF rN€offii I"t Ms. *urn#""i]^t$]J Advocate. VERSUS NHK JAPAN BROADCASTTNG CORPORATTON ..RESpONDENTThrough:Mr. Salil Kapoor, advocateSalil Kapoor, advocateKapoor, advocateadvocate Mr. Salil Kapoor, advocateSalil Kapoor, advocateKapoor, advocateadvocatewith Mr. Sanat Kapoor,Advocate. (7) rTA r.86 OF 2Or.1 . . . APPELLANT COMMISSNONER OF INCOME TAX ITA 1 64/201 1, rTA 168/20 I L,tTA 1 69/201 1, tTA 188/201 1,ITA r. 89/2 0 r. r., rTA r. I 0/2 0 l. 1., tTA 1 I 6/2 0 L L Page 2 of 13 VERSUS NHK JAPAN BROADCASTTNG CORPORATTON ..RESpONDENTThrough: Mr. Salil Kapoor, advocateSalil Kapoor, advocateKapoor, advocateadvocate Mr. Salil Kapoor, advocateSalil Kapoor, advocateKapoor, advocateadvocatewith Mr. Sanat Kapoor,Advocate. CORAM :- HON',BLE MR. JUSTTCE A.K. StKRtHON',BLE MR. JUSTTCE M.L. MEHTA 1. Whether Reporters of Local newspapers may beallowed to see the Judgment?allowed to see the Judgment? see the Judgment?2. To be referred to the Reporter or not?3. Whether the Judgment should be reported in theDigest?3. Whether the Judgment should be reported in theDigest? A.K. SIKRI, I. 1. The respondent assessee which is a Public BroadcastingCompany of Japan (and, therefore, naturally a Non-Residenteompany) 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'). 2. Before we spell out the exact nature of default attributed tothe assessee, we deem it apposite to recount the facts in brief. The respondent, NHK Japan is a government owned publicbroadcasting company of Japan having news buieaus in manycountries including India. The respondent had deputed expatriate see the Judgment?2. To be referred to the Reporter or not?3. Whether the Judgment should be reported in theDigest?3. Whether the Judgment should be reported in theDigest? A.K. SIKRI, I. 1. The respondent assessee which is a Public BroadcastingCompany of Japan (and, therefore, naturally a Non-Residenteompany) 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'). 2. Before we spell out the exact nature of default attributed tothe assessee, we deem it apposite to recount the facts in brief. The respondent, NHK Japan is a government owned publicbroadcasting company of Japan having news buieaus in manycountries including India. The respondent had deputed expatriate employees from Japan for working in its office in lndia. Theexpatriates were receiving sa.lary in India and a portion of salaryand allowances in Japan. Under the law in Japan, citizens/nationalsand allowances in Japan. Under the law in Japan, citizens/nationalsof Japan are liable to levy of an annual municipal Citizen Tax alsoreferred to as lnhabitant tax which is charged on account of beingan inhabitant of Japan. In case a Japanese citizen is renderingservices in an employment in Japan or abroad on a transfer fromJapan [for ][which he ][receives any ][salary ][in ]Japan, [the ][citizen ][tax ][for]a year in which he was in Japan on the first day of January of thatyegr is required to be withheld by his employer from suchan inhabitant of Japan. In case a Japanese citizen is renderingservices in an employment in Japan or abroad on a transfer fromJapan [for ][which he ][receives any ][salary ][in ]Japan, [the ][citizen ][tax ][for]a year in which he was in Japan on the first day of January of thatyegr is required to be withheld by his employer from suchemployee's salary income in Japan and paid directly to theconcerned Municipality.. NHK, was accordingly, withholding andpaying over to the conierned municipal authority in Japan, thecitizen's tax levied under the Japanese law, from the salariespaying over to the conierned municipal authority in Japan, thecitizen's tax levied under the Japanese law, from the salariespayable by it in Japan to its expatriate employees assigned by it toits news bureau in India. The citizen tax withheld from the salariesits news bureau in India. The citizen tax withheld from the salariesin accordance with the law in Japan was claimed to be excludibleand deductible in the computation of salary income of theemployees liable to tax in India.employees liable to tax in India. The AO ,passed order under Section 201 (1) and 201 (1,A) ofthe Act on 16th Decembe r, 1999 for the Financial year 1988-89 to1998-99. The Ao did not accept the claims of deduction andthe Act on 16th Decembe r, 1999 for the Financial year 1988-89 to1998-99. The Ao did not accept the claims of deduction and Page 4 of L3 made additions by working out the difference of additional tax andinterest taking into account (i) number of work days outside India(ii) Citizen tax and (iii) Housing norm. On appeal before the Commissioner of lncome Tax [(Appeals)]it was held that citizen tax is a statutory levy in Japan on Japanesecitizens and that such tax constitutes an overriding,charge on thesalary income and therefore the same had to be excluded incomputation of taxable. income. On the issue of assessee beingheld to be in default uls 2OI (1) and 201 [(1A) ]and housing normdeduction, the matter was decided against the assessee. The CIT(A) decided the appeals for 11 financial years i.e. FY 1988-89 to1998-99 by way of a common order dated 30th March, 2001. Page 4 of L3 made additions by working out the difference of additional tax andinterest taking into account (i) number of work days outside India(ii) Citizen tax and (iii) Housing norm. On appeal before the Commissioner of lncome Tax [(Appeals)]it was held that citizen tax is a statutory levy in Japan on Japanesecitizens and that such tax constitutes an overriding,charge on thesalary income and therefore the same had to be excluded incomputation of taxable. income. On the issue of assessee beingheld to be in default uls 2OI (1) and 201 [(1A) ]and housing normdeduction, the matter was decided against the assessee. The CIT(A) decided the appeals for 11 financial years i.e. FY 1988-89 to1998-99 by way of a common order dated 30th March, 2001. Against the order of CIT (A), 11 appeals were filed by theassessee before the ITAT on the grounds of assessee being indefault, housing norm deduction and . an additional groundregarding orders for FY 1988-89 to 1994-95 being barred bylimitation. 11 appeals were filed by the Revenue before the ITATon issue of citizen tax deduction. All appeals were decided by acommon order dated 10th March, 2006. The appeals of theassessee were allowed and those of the Revenue were dismissed.Orders for FY 1988-89 to 1994-95 were held as invalid on theground of limitation and for FY 1995-96 to 1998-99 assessee was [,r held not to be in default. The Tribunal upheld the Commissioner'sorder on citizen tax issue. The Revenue filed 22 appeals in this Court against the abovementioned orders of the lrAT, which were all dismissed. Thismentioned orders of the lrAT, which were all dismissed. ThisCourt vide orders dated 3Oth Marc h, 2OO7 on 11 appeals by therevenue on citizen tax issue dismissed the same basing itsrevenue on citizen tax issue dismissed the same basing itsdecision on the judgment of the Supreme Court in the case of CITVs. sitaldas Tirathdas [1961] 4r lrR 367. Vide a separateorders dated 23'd April, 2008, other 11 appeals filed by theVs. sitaldas Tirathdas [1961] 4r lrR 367. Vide a separateorders dated 23'd April, 2008, other 11 appeals filed by theRevenue on the issue of order under Section 201 (1) and 201 (1A)were dismissed on the ground that action was barred by limitation.The Revenue went in appeal before the Supreme Court in twobatches. In. the 1'.t batch, it agitated the citizen tax issue and inthe 2nd batch, it challenged the issue of limitation. The supremewere dismissed on the ground that action was barred by limitation.The Revenue went in appeal before the Supreme Court in twobatches. In. the 1'.t batch, it agitated the citizen tax issue and inthe 2nd batch, it challenged the issue of limitation. The supremeCourt vide orders dated 16th March, 2OOB in the l't batch ofappeals directed the Tribunal to consider the matter afresh inaccordance with law as regard citizbn tax issue. lt would beaccordance with law as regard citizbn tax issue. lt would bepertinent to quote the exact direction given by the supreme courtin the aforesaid order as much turns on those directions:- "Without going into the merits of the case,suftice it to state that in the present case, inour view, the Commissioner (Appeals) oughtto have examined the scope of the Japanese Page 6 of 13 'o t law, namely, Citizens lndividual Inhabitant TaxAct. ln the letter of appointment issued, thereis a reference to the words. The relevantClause reads as under: "Tour emoluments shall be subject tbdeduction of taxes as per applicablelaws and the tax liability on hostcountry (lndia) shall be borne byN H K-'Ja panBroadcasting Corporation. " "Without going into the merits of the case,suftice it to state that in the present case, inour view, the Commissioner (Appeals) oughtto have examined the scope of the Japanese Page 6 of 13 'o t law, namely, Citizens lndividual Inhabitant TaxAct. ln the letter of appointment issued, thereis a reference to the words. The relevantClause reads as under: "Tour emoluments shall be subject tbdeduction of taxes as per applicablelaws and the tax liability on hostcountry (lndia) shall be borne byN H K-'Ja panBroadcasting Corporation. " Analysing the said Clause one finds that theemoluments paid by the assessee was subjectto deduction of tax as per applicable laws.emoluments paid by the assessee was subjectto deduction of tax as per applicable laws.Therefore, in our view, Commissioner(Appeals) ought to have examined theprovisions of Citizens Individual lnhabitant TaxAct which is a Japanese law and it ought tohave analysed the provisions of that law,Act which is a Japanese law and it ought tohave analysed the provisions of that law,particularly, when it was required to decidethe question as to nature of the levy being anthe question as to nature of the levy being anoverriding charge on the salary income, asstated hereinabove. The controversy in thestated hereinabove. The controversy in thepresent case is that citizens tax is a statutorylevy in Japan on the Japanese citizenslevy in Japan on the Japanese citizensconstituting an overriding charge. lf it is anoverriding ' charge then of course theCommissioner (Appeals) was right in sayingthat it would not be an income. However, inour view, since the provisions of the Act haveCommissioner (Appeals) was right in sayingthat it would not be an income. However, inour view, since the provisions of the Act havenot been examined, the matter needs to beconsidered afresh Tribunal.by the Accordingly, we remit the matter to theTribunal for fresh consideration in accordancewith law. We express no opinion on the meritsof the case."by the Accordingly, we remit the matter to theTribunal for fresh consideration in accordancewith law. We express no opinion on the meritsof the case." It is clear from the above thatthe Supreme Court was of theview that issue at hand could notbe decided without going intothe specific provisions contained in Citizens Individual InhabitantTax Act (hereinafter referred to as 'the Citizens Tax Act,) of Japan and analyzing those provisions. since the scope of aforesaidJapanese [law ][Was ][not ][examined, ]the Supreme Court remitted thecase back to the Tribunal for fresh consideration "in accordancewith law" and to ascertain from the provisions of the citizens TaxAct as to whether the statutory levy in Japan constituted anoverriding charge. The Supreme Court made it clear that if it wasan overriding charge, then it would not be an income. 3. when the matter reached back to Tribunal, the parties weredirected to place on record copy of the aforesaid citizens Tax Actduly translated into English vide orders dated 16rh March, 2009.The counsel for the assessee filed the copy of the aforesaid Actalongwith its English translation but did not.take the responsibilitywith respect to the authenticity of its English translation. ln such asituation, the order dated 9th December, 2009 was passed by theTribunal directing the Departmental Representative of theRevenue to place on record the copies of the provisions translatedinto English. Even after seeking adjournments, the Revenue failedto file the translated copy of the relevant provisions of the saidAct, This posed a dilemma in the minds of the Tribunar. on theone hand, there was a direction given by the supreme court todecide the issue with reference to the provisions of the citizens tr A t64 tzorL,tTA 168/20 1 L,tTA 169/2 0 I 1,tTA 1 88/201 1,rTA 189/201r,tTA 190/2011,tTA 186/2011Page 8 of 13 l1 tr A t64 tzorL,tTA 168/20 1 L,tTA 169/2 0 I 1,tTA 1 88/201 1,rTA 189/201r,tTA 190/2011,tTA 186/2011Page 8 of 13 l1 Tax Act and on the other hand, the Tribunal felt helpless as it wasunable to proceed unless the authenticated copy of the Englishtranslation version of the said Act was produced before it. TheTribunal was conscious of the directions given by the SupremeCourt which is specifically taken note in para B of the impugnedorder. However, two reasons prevailed in the mind of the Tribunalwhich led to passing of the impugned order dismissing the appealof the Revenue namely: (i) As already pointed out above, thedepartment failed to place on record theEnglish version of the Citizens Tax Act in theabsence of which it became impossible forthe Tribunal to decide the issue.department failed to place on record theEnglish version of the Citizens Tax Act in theabsence of which it became impossible forthe Tribunal to decide the issue. (ii) Another aspect which heavily weigh withthe Tribunal was the subsequent decision ofthe Supreme Court itself whereby it hadupheld the quashing of the orders passedunder Section 201 (1) and 201(14) of theAct. From this, the Tribunal concluded thatit would be a futile exercise to determine thethe Tribunal was the subsequent decision ofthe Supreme Court itself whereby it hadupheld the quashing of the orders passedunder Section 201 (1) and 201(14) of theAct. From this, the Tribunal concluded thatit would be a futile exercise to determine the- issue namely whether the Citizens Tax Acthad an overriding charge over the salaryincome of the assessee or not.had an overriding charge over the salaryincome of the assessee or not. 4, In so far as first reason given by the Tribunal is concerned,no doubt, the Tribunal felt helpless to determine the issue as perdirection of the Supreme court for no fault of its own. Normally, insuch a situation, it could have asked the other party namely theassessee to approach the supreme court for variations of the Page 9 of 13 directions given by the Supreme Court in its order dated 16thMarch, 2009 inasmuch as, the Tribunal is bound to carry out suchdirections. However, if the second ground given by the Tribunalhas merit, there may not be any fault with the impugned orderpassed by the Tribunal, therefore, we proceed to examine theveracity of the second ground taken by the Tribunal. 5. As pointed out above, there were two batches of appeals,before the Supreme Court. l't batch was concerned with theCitizens Tax Act in which directions dated 16th March, 2009 werepassed by the Supreme Court, as noted above. The 2nd batch ofappeals was concerned with the issue of limitation. As notedabove, the orders in respect of financial year 1988-Bg to 1994-95were held, to be invalid on the ground of limitation by the Tribunalwhich order was upheld by. this court and special Leave [petition]was filed against that order. This batch of appeals was stillpending. 6. In the meantime, the question of non-deduction of tax atsource on overseas payments to expatriate employees came upfor consideration before the Supreme Court in the case ofCommissioner of Income Tax Vs. Eli Lilly & Co. Pvt. Ltd. (2009) 372 ITR 22. These cases included the appeal pertaining tothe present assessee also. When the 2nd batch of appeals cameup for hearing before the Supreme Court, [going ]by the aforesaidorders dated 25th March, 2009 in EIi Lilly & Ca, [(supra), ]theSupreme Court passed the following orders dated 2Oth January,2010:-the present assessee also. When the 2nd batch of appeals cameup for hearing before the Supreme Court, [going ]by the aforesaidorders dated 25th March, 2009 in EIi Lilly & Ca, [(supra), ]theSupreme Court passed the following orders dated 2Oth January,2010:- "Delay condoned. . Leave granted. The following substantial question of law arises forconsideration in this batch of civil appeals:- (2009) 372 ITR 22. These cases included the appeal pertaining tothe present assessee also. When the 2nd batch of appeals cameup for hearing before the Supreme Court, [going ]by the aforesaidorders dated 25th March, 2009 in EIi Lilly & Ca, [(supra), ]theSupreme Court passed the following orders dated 2Oth January,2010:-the present assessee also. When the 2nd batch of appeals cameup for hearing before the Supreme Court, [going ]by the aforesaidorders dated 25th March, 2009 in EIi Lilly & Ca, [(supra), ]theSupreme Court passed the following orders dated 2Oth January,2010:- "Delay condoned. . Leave granted. The following substantial question of law arises forconsideration in this batch of civil appeals:- "Whether the lncome Tax AppellateTribunal was correct in law in holdingthat the orders passed under Sections2OL(1) and 201(1A) of the Income TaxAct, 1961 are invalid and barred bytime having been passed beyond areasonable period."Tribunal was correct in law in holdingthat the orders passed under Sections2OL(1) and 201(1A) of the Income TaxAct, 1961 are invalid and barred bytime having been passed beyond areasonable period." Having heard learned counsel on both sides, we. [are of the ][view ][that, ][on the ][facts ][and]circumstances of these cases, the question on thepoint of limitation formulated by the Income TaxAppellate Tribunal in the present cases need notbe gone into for the simple reason tlrat, at therelevant time, there was a debate on tlre questionas to whether TDS was deductible under theIncome Tax Act, 1961, on foreign salary paymentas a component of the total salary paid to anexpatriate working in lndia? This controversycame to an end vide [judgment ]of this Court in thecase of Commissioner of lncome Tax Vs. Eli Lilly &Co. (lndia) Pvt. Ltd., reported in (2009) 3L2 ITR2235. The question on limitation has becomeacademic in these cases because, evenassuming that the Depaftment is right on the l fi; issue of limitation still the [question ][would]arise whether on such debatable [points, the]assessee (s) could be declared [as]in default under [Serction ] assesseegs) read with Section 2OL of the [Income Tax Act,]L96L. Further, we are informed that the [assessee]have paid the differential tax. They [have paid the]interest and they further undertake not [to ][claim]refund for the amounts [paid. ][Before ][concluding,]we may also btate that, in Eli Lilly & co. [(lndia) ][Pvt.]Ltd. (supra) vide paragraph 2L, this Court [has]clarified that the law laid down in the said case [was]only applicable to the [provisions ]of Section [192 of]the Income Tax Act, 1961, Leaving the [question ]of law open on [limitation,]' these civil appeals filed by the Department [are]disposed of with no order as to costs." It is.thus clear that the same Bench [of ]the [Supreme ][Court]which issued direction on 16th March, 20.09 [passed ]the aforesaidorder making .it emphatically clear that [evell ][the ][issue ][of]limitation had become academic as the assessee could not [be]declared as assessee in default under Section [1.92 ]read [with]Section 201 of the Act. The fallout of the aforesaid [order ][dated]20th J.anuary, 2010 is that the Supreme'Court has held that theaSSeSSee fOr the assessment [years ]in [question, ]callnot [be treated]as assessee in default. The consequence would be to [quash ][the]proceeding initiated by the AO treating the assessee to be indefault under Section 201 [(1) ]and 201 [(1A) ]of the Act. t? ,t ' 7. We, thus agree with the Tribunal that the [issue ][had ][become]academic in nature and there was no reason left to decide this issue. This happened because of the subsequent order [of ][the]Supreme Court itself. firis resulted as a [consequence ][of ][the]orders passed by the Supreme Court, that too, in the case of thisvery assessee pertaininn aU ,n" appeals of the assessment [years]on the same question. We thus find no t"rit in these appealswhich are dismissed on this ground alone. "l@ [1lr't"^-](A.K. SrKRr)JUDGE (M.L. MEHTA)JUDGE MAY LL,?OLLskb in I [y]| {.)