Wp/44466/2017 Of Smt Shashikala v. Commissioner Of Income Tax, Reported In 1984 147 Itr 258 Bom

IN THE HIGH COURT OF KARNATAKA AT BENGALURU| DATED THIS THR 13 DAY OF OCTOBER, 2017. BEKORE, THR HON’BLE MR. JUSTICK ARAVIND KUMAR. mWRIT PETITION NO.44466 OF 2017 (GMRES) BETWEEN: SMT. SHASHIKALA W/O PRAVEEN AGED ABOUT 39 YEARSRESIDING AT “RATHNA NILAYA”WARD NO.1, VAPASANDRA CHICKBALLAPUR — 562 101. ... PETITIONER | (BY SRI SHASHIKUMAR, FOR|SRI M.K.SHIVARAM, ADVOCATE)SRI M.K.SHIVARAM, ADVOCATE) AND: 1.SRI R.PRAVEEN »/O LATE RAMADAS|AGED ABOUT 48 YRARSRESIDING AT VIJAYANAGARA|BENGALURU — 560 O4O..AGED ABOUT 48 YRARSRESIDING AT VIJAYANAGARA|BENGALURU — 560 O4O.. |THE COMMISSIONER OF INCOME TAX,CHENTRAL REVENUE BUILDINGCHENTRAL REVENUE BUILDING QUEEN'S ROAD BENGALURU — 560 OO2. (RESPONDENT NO.2 IMPLEADED AS PER COURT| ORDER DATED 06.10.2017) ... RESPONDENTS (BY SRI.K.V.ARAVIND, ADV. FOR R2; VIDE ORDER DATED 06.10.201/7 NOTICE TO R1DISPENSED WITH).DISPENSED WITH). THIS WRIT PETITION IS FILED UNDER ARTICLES 226)AND 227 OF CONSTITUTION OF INDIA R/W. SECTION 482OF CR.P.C., PRAYING TO QUASH THE ORDER DATED|19.08.2017 IN CASE NO.CRL.A.6/2016 PASSED BY THE)PRL. DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPUR|AS PBR ANNBXUREB —- A AND DIRBCTING THE OFFICE TRBLKEASEKE THR BNTIRE AMOUNT TO THR PRTITIONBR IN THE ALTERNATIVE DIRECT THE RESPONDENT HEREINTO WITHDRAW THR AMOUNT [IN DBPOSITT BY THRESPONDENT LE., (RS.25,00,000/- RUPEES TWENTY FIVE|LAKHS ONLY) AND DIRECTLY PAY THE AMOUNT TO THE|PETITIONER. THIS WRIT PETITION COMING ON FOR PRELIMINARY|HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE)FOLLOWING: ORDER Heard|Sr1.Shashikumar>learned|counselappearing on behalf of Sri M.K. Shivaram, for petitioner, sri K.V. Aravind, learned counsel appearing forrespondent No.2. 2By consent of learned advocates, this writ,petition is taken up for final disposal. 3.)Petitioner herein has filed a petition under|Section 29 of Protection of Women trom Domestic|Violence Act, 20095 is seeking for the reliefs as morefully stated in the petition. Said application came to be|allowed in part and first respondent herein was directedto pay a sum of Rs.2,000/- p.m. and also permitted thepetitioner to stay in the house where the first|respondent was residing and jurisdictional police was|directed to extend necessary assistance/protection to|the petitioner. Being aggrieved by the same, first|respondent’s mother - Smt. Jayamma filed an appeal inCrl.A.No.6/2016, which matter came to be referred to|Lok Adalat. On 10.09.2016, there was a settlement|arrived at between the parties in the Lok Adalat and|respondent agreed to pay the petitioner a lumpsum|amountot Rs 25)lakhsaspermanentalimony.Pursuant to said settlement, first respondent herein|deposited a sum of Rs.10 lakhs on 14.12.2016 and a|sum of Rs.lo lakhs on 26.12.2016. The petitioner|herein filed an application along with voucher for|release of the said amount. At that point of time, on thebasis of a note made by the Registry noting that said| amount being admissible to Income Tax, the learned|sessions Judge has directed the Registry to deduct 20%as tax at source by deducting the said 20% from out of|the amount so deposited by respondent herein. Hence,petitioner is before this Court seeking quashing of said|order. 4It is the contention of Sri Shashikumar,|learned counsel appearing for the petitioner that|permanent alimony received by a divorced wite either|from her husband or from the in-laws which results in|payment of permanent alimony, would not attract the|provisions of Income Tax Act and as such learned|sessions Judge was in error in ordering for deducting|tax at source. Hence, he prays for quashing of said|order. In support of his submission, he has relied uponthe judgment of the Hon’ble Court of Bombay in the|case ofPrincess Maheshwari Devi vs. Commissionerof Income Tax, reported in 1984 147 ITR 258 Bom 4It is the contention of Sri Shashikumar,|learned counsel appearing for the petitioner that|permanent alimony received by a divorced wite either|from her husband or from the in-laws which results in|payment of permanent alimony, would not attract the|provisions of Income Tax Act and as such learned|sessions Judge was in error in ordering for deducting|tax at source. Hence, he prays for quashing of said|order. In support of his submission, he has relied uponthe judgment of the Hon’ble Court of Bombay in the|case ofPrincess Maheshwari Devi vs. Commissionerof Income Tax, reported in 1984 147 ITR 258 Bom 5Percontra,Sr1K.V..Aravind,learnedstandingCounselappearingforDepartmentrespondent No.2 would submit that though the|provisions of Income Tax Act insofar as it relates to|deduction of tax at source as indicated in Chapter-XVII|of Income Tax Act, 1961, is silent, the issue regarding|receipt of permanent alimony could be subject to|Income Tax in the hands of recipient may be Kept open|and hence, he prays for orders of the learned District|Judge being modified accordingly. 6.Havingheard|thelearnedadvocates.appearing for parties and on perusal of provisions of the Income Tax Act, 1961 in general and Chapter-XVII in)particular, it would disclose that tax which has to be)deducted at source has been specified under Sections|192 to 196B. The payment of permanent alimony doesnot find a place in any of these provisions. | TSIn this background, when the order passed| by the learned District Judge is perused, it would|disclose that following order came to be passed:| “Perused the amount is paid to the respondent asalimony, which is liable for Income Tax. Hence,20% of the total amount be deducted as TDS andremaining amount be paid to respondent. Sd/ - |District Judge19.8.2017'| This order came to be passed on the basis of anote made by the Registry on 19.08.2017, whereunder,Registry has stated that payment of Rs.2o lakhs is|admissible to Income Tax and same is to be recovered|from the said amount to be paid to the respondent by|deducting tax at source. 8.)In the light of Chapter-XVII of Income Tax| Act not providing for deduction of tax at source, insofar|as receipt of permanent alimony is concerned, the Courtis of the view that learned District Judge was in error in directing the Registry to deduct 20% out of Rs.29 lakhsas tax at source. As such, said order cannot be|sustained and it is hable to be quashed.| Hence, I pass the following: ORDER 7*Writ petition is hereby allowed. 77*Order|dated19.08.2017passedin|Crl.A.No.6/2016 by the learned Principal|District Judge, Chikkballapur (Annexure-A)|is hereby quashed. 777* Registryot|thePrincipalDistrictandsessions Judge, Chickballapur is directed to issue cheque for Rs.25 lakhs (Rupees Twenty|Five Lakhs only) in favour of petitioner,forthwith on proper identification. 7E* No opinion is expressed with regard to other.aspects of the matter and it is left open. sD/-|JUDGE ca