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Nirlon Synthetic Fibres And Chemicals ... vs Inspecting Assistant Commissioner on 30 June, 1984 cites

Commissioner Of Income-Tax, Bombay ... vs Premier Tyres Ltd. on 31 August, 1981

21. Reliance was placed on behalf of the assessee on the decision of the Bombay High Court in CIT v. Premier Tyres Ltd. [1982] 134 ITR 17. The ratio of that decision is that a person who is liable to pay tax as an agent of the non-resident is not required to deduct tax under Section 195 before making payment to non-resident and such person cannot be deemed to be in default under Section 201. The ratio of this decision is not applicable to the facts of the present case. In the case before the Bombay High Court, the ITO under Section 163(2) had passed an order that the assessee was the agent of the non-resident. Consequently, it was an admitted position in that case that the assessee was an agent of the non-resident. It was on this admitted position that the High Court held that the assessee was not liable to deduct tax under Section 195. In our case, the position is entirely different. In our case, there is no order under Section 163(2) treating the assessee as an agent of the non-resident. The assessee itself never asserted before the ITO at the relevant time that the assessee was an agent of the non-resident. The assessee by its conduct represented to the ITO that it was not the agent and that it was liable to deduct tax under Section 195. In the circumstances, the assessee was not entitled to assert a subsequent stage that the assessee was an agent of the non-resident. As already stated, the said question was a mixed question of law and fact and that question cannot be investigated at the appellate stage.
Bombay High Court Cites 10 - Cited by 10 - Full Document

National Newsprint And Paper Mills Ltd. vs Commissioner Of Income-Tax on 28 April, 1977

In this connection, the decision in National Newsprint & Paper Mills Ltd. v. CIT [1961] 41 ITR 60 (MP) is very instructive. The Madhya Pradesh High Court in that case was construing the provisions of Sections 18(3B) and 43 of the Indian Income-tax Act, 1922 ('the 1922 Act') which correspond to Sections 195 and 163 of the 1961 Act. The High Court observed the expression 'unless he is himself liable to pay any income-tax . . . thereon as an agent' introduces in Sub-section (3B) an exception for the benefit of the person sought to be made liable for deduction under that sub-section. The expression does not mean that unless the person has been declared not to be an agent in accordance with Section 43, he cannot be made liable for deduction under Sub-section (3B). If the department has not treated him as an agent, it must be taken that for the purpose of Sub-section (3B) of Section 18, the person has not been made liable to pay income-tax as an agent of the non-resident. No enquiry and adjudication is necessary for determining whether a person has or Has not been treated as an agent under Section 43 before making him liable under Section 18(3B) for deduction of tax. The above principle would apply in the present case. As already stated, the assessee has not been treated as an agent. The assessee itself had never claimed to be an agent before the ITO. In the circumstances, the assessee cannot claim that the assessee is liable to pay income-tax as an agent and that provisions of Section 195 were not applicable.
Madhya Pradesh High Court Cites 6 - Cited by 12 - Full Document
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