National Petroleum Construction Company vs Deputy Commissioner of Income Tax, Circle 2(2), International Taxation, New Delhi & Anr.

Court

Supreme Court of India

Date

29 July 2022

Case No.

Civil Appeal No. 4964 of 2022

Bench

Indira Banerjee, J.K. Maheshwari

Citation

[2022] 17 S.C.R. 236 : 2022 INSC 772

Headnote

Income Tax Act, 1961 – ss.197, 195(1) – Income Tax (Second Amendment) Rules, 2011 – r.28AA – Writ Petition filed by Appellant against the refusal of the Respondent no.1 to modify the Certificate issued to it for the financial year 2019-20 (corresponding to the Assessment Year 2020-21) u/s.197 for Tax Deduction at Source (TDS) at the rate of 4% in respect of payments received by the Appellant from ONGC towards work done out of India as well as within India, dismissed by High Court – Correctness of – Held:Per Indira Banerjee, J. High Court rightly held that the question of whether the appellant had Permanent Establishment (PE), could not possibly be undertaken in an enquiry for issuance of certificate u/s.197 of the IT Act –Further, the Appellant itself made a request for Certificate for TDS at the rate of 4% on all receipts – Thus, the impugned certificate having been issued as per the appellant’s own request, the appellant is estopped from questioning the certificate by initiation of proceedings u/Article 226 – No infirmity in the reasoning of the High Court calling for interference – Per J. K. Maheshwari, J. Since there was no change in circumstances and the situation of the appellant in the financial years 2017-18 and 201819 respectively and in the financial year 2019-20 in question (assessment year 2020-21) are the same, the principle of consistency ought to be followed while considering the application u/s.197 of the IT Act – Order passed by High Court is without considering the perspective and scope of issuance of certificate for deduction of tax and also without following the prescribed procedure – High Court committed error in dismissing the writ petition – In view of difference of opinion, matter to be placed before Hon’ble the Chief Justice of India to constitute an appropriate bench to hear the matter – Constitution of India – Article 226.

(In the judgment of Indira Banerjee, J. )

G.E. India Technology Centre Pvt. Ltd. v. Commissioner of Income Tax and Anr. (2010) 327 ITR 456 (SC); Ishikawajima-Harima Heavy Industries v. Director of Income Tax, Mumbai (2007) 288 ITR 408 (SC);

Commissioner of Income Tax and Anr. v. Hyundai Heavy Industries Co. Ltd (2007) 291 ITR 482 (SC) – referred to.

(In the judgement of J.K. Maheshwari, J.)

M/s Radhasoami Satsang, Saomi Bagh, Agra v.

Commissioner of Income Tax (1992) 1 SCC 659 : [1991]

The Judgments and Order of the Court were delivered by INDIRA BANERJEE, J. Leave granted. 2. This appeal is against the judgment and final order dated 20th December 2019 passed by High Court of Delhi dismissing the Writ Petition being Writ Petition (C) No.8527 of 2019 filed by the Appellant against the refusal of the Respondent No.1 to modify the Certificate dated 26th June 2019 issued to the Appellant for the Financial/Previous Year 201920, corresponding to the Assessment Year 2020-21, under Section 197 of the Income Tax Act 1961, hereinafter referred to as the “IT Act”, for Tax Deduction a

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