NATIONAL PETROLEUM CONSTRUCTION COMPANY versus DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2(2), INTERNATIONAL TAXATION, NEW DELHI & ANR

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4964 OF 2022

(ARISING OUT OF SLP (C) NO. 9233 OF 2020)

NATIONAL PETROLEUM CONSTRUCTION COMPANY ....Appellant (s)

versus

DEPUTY COMMISSIONER OF INCOME TAX,

CIRCLE 2(2), INTERNATIONAL TAXATION,

NEW DELHI & ANR. .…Respondent (s)

J U D G M E N T

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 2019-20, 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 at Source (TDS) at the rate of 4% in respect

of payments received by the Appellant from Oil and Natural Gas

Company Ltd. hereinafter referred to as the “ONGC” towards work done

out of India as well as within India.

3. The Appellant, National Petroleum Construction Company, is a

company incorporated under the laws of the United Arab Emirates (UAE)

and is a tax resident of that country. The provisions of the Agreement

for Avoidance of Double Taxation hereinafter referred to as the “AADT”

between India and the UAE apply in determining the taxable income of

the Appellant under the IT Act.

4. The Appellant is, inter alia, engaged in the fabrication of

Petroleum Platforms, Pipelines and other equipment, installation of

Petroleum Platforms, Submarine Pipelines, onshore and offshore oil

facilities and coating of Pipelines.

5. Pursuant to different tender notices issued by ONGC from time to

time, the Appellant submitted tenders, inter alia, for installation of

Petroleum Platforms and submarine Pipelines. The tenders submitted

by the Appellant were accepted and contracts were executed by and

between the Appellant and ONGC. The first contract was executed by

and between the Appellant and ONGC in the Financial Year 1996-97,

corresponding to the Assessment Year 1997-98.

6. On 28th August 2005, the Appellant was awarded a contract

termed as Contract No. MR/OW/MM/NHBS4WPP for Well Platform Project-

II hereinafter referred to as ‘LEWPP Contract’ pursuant to a global

tender floated by ONGC in July 2005. This was the third contract

between the Appellant and ONGC. Later on 23rd November 2006, the

Appellant entered into another contract termed as Contract No.

MR/OW/MM/C-Series/03/2006, hereinafter referred to as ‘C-Series

Contract’, for C-Series Project.

7. The scope of work as described in the “General Conditions of

Contract” for LEWPP Contract and C-Series Contract included “Surveys

(pre-engineering, pre-construction/pre-installation and post-installation),

Design, Engineering, Procurement, Fabrication, Anticorrosion & Weight

coating (in case of rigid pipeline), Load-out, Tie-down/Sea fastening,

Tow-out/Sail-out, Transportation, Installation, Hook-up, Installation of

submarine pipelines, Installation and hook-up of submarine cables,

Modifications on existing facilities, Testing, Pre-commissioning,

Commissioning of entire facilities as described in the bidding

document”.

8. The contracts referred to above included various activities. Whilst

the activities relating to survey, installation and commissioning were

done entirely in India, the platforms were designed, engineered and

fabricated overseas - at Abu Dhabi.

9. The Appellant has been filing its Income Tax Returns from the

Assessment Year 1997-98. The Appellant’s income has been computed

on a presumptive basis by taxing the gross receipts pertaining to the

activities in India, less verifiable expenses at the rate of 10% and the

receipts pertaining to activities out of India at the rate of 1%.

10. The Appellant adopted the said basis for computing its assessable

income and filed its returns for the Assessment Year 1999-2000

onwards. Accordingly the returns filed by the Appellant for the

Assessment Years 2004-05, 2005-06 and 2006-07 were processed under

Section 143(1) of the IT Act. However, the returns filed by the Appellant

for Assessment Years 2007-08 and 2008-09, were not accepted by the

Assessing Officer, hereinafter referred to as the ‘AO’.

11. The AO passed a Draft Assessment Order dated 31st December

2009 for the Assessment Year 2007-08 holding that the Appellant had a

Fixed Place Permanent Establishment in India in the form of a Project

Office at Mumbai. The AO further held that Arcadia Shipping Ltd. (ASL),

agent of the Appellant had a Permanent Establishment in India, which

constituted a Dependent Agent Permanent Establishment, hereinafter

referred to as “DAPE”, of the Appellant.

12. With regard to the Appellant’s contention that the fabricated

material was sold to ONGC outside India, the AO found that the contract

was a turnkey and a composite contract and was not divisible as

claimed by the Appellant. Accordingly, the AO held that the entire

contractual receipts including the payments for activities performed

outside India were taxable in India. The consideration received by the

Appellant for design and engineering was held to be Fees for Technical

Services, hereinafter referred to as the 'FTS'. Since, the Appellant had

not maintained separate books pertaining to the contract, the AO

estimated the Appellant’s profit at 25% of the consideration received

from ONGC.

13. The Appellant did not accept the Draft Assessment Order and filed

its objections before the Dispute Resolution Panel hereinafter referred to

as the “DRP”. The DRP held that Article 5 of the AADT provided an

inclusive definition of ‘Permanent Establishment’ (PE) and that the

Appellant’s Project Office constituted a PE of the Appellant in India. The

DRP concurred with the AO that ASL was a DAPE of the Assessee.

14. The DRP observed that pre-engineering or pre- design survey,

claimed to be done by a sub-contractor employed by the Appellant,

was an integral part of the contract and the time spent by the subcontractor would also constitute the time spent by the Appellant in India

in computing residence in India for over nine months during the

Assessment Year, in terms of the AADT.

15. The DRP rejected the contention that the contract was a divisible

contract and the income of the Appellant for the activities done outside

India was not taxable under the IT Act.

16. The Appellant filed an appeal against the order of the assessment

passed by the AO before the Income Tax Appellate Tribunal hereinafter

referred to as the “ITAT”. The ITAT concurred with the AO and rejected

the Appellant’s contention that it did not have a PE in India. The ITAT

also concurred with the AO that the establishment of ASL in India was a

DAPE of the Appellant.

17. The ITAT, however, accepted the Appellant’s contention that the

contract could be segregated into offshore and onshore activities and

the Appellant’s income for the activities carried on out of India could not

be attributed to its PE in India.

18. The ITAT rejected the Appellant’s contention that the tax payable

should be computed as per the formula adopted in the preceding years,

i.e. 10% of the receipts attributable to activities in India, less expenses

in India and 1% of the receipts attributable to activities carried on

overseas.

19. By a judgment and order dated 29th January 2016, in the Appeal

being ITA No. 143 of 2013, filed by the Appellant and other related

Appeals filed by the Revenue, the Division Bench of the High Court of

Delhi concurred with the view of the ITAT that consideration for activities

carried on overseas could not be attributed to the Appellant’s PE in

India. The Court observed that it was not disputed that invoices raised

by the Appellant specifically indicated whether the work was done

outside India or in India. Thus, even though the contracts might be

turnkey contracts, the value of the work done outside India was

segregable.

20. Two contracts were concluded by and between the Appellant and

ONGC, one dated 30th September 2016, hereinafter referred to as

LEWPP Contract, and the other dated 7th February 2018, hereinafter

referred to as the R-series Contract, which have led to this Appeal. The

Appellant received payments for work done under the said two

contracts in the Previous/Financial Year 2019-20 corresponding to the

Assessment Year 2020-21.

21. By a judgment and order dated 9th May 2017 in Writ Petition being

Writ Petition (C) No. 2117 of 2017, the High Court of Delhi set aside a

Certificate dated 31st January 2017 issued by the Respondent No.1

under Section 197 of the IT Act, requiring deduction of TDS at the rate

of 4% on all payments made by ONGC to the Appellant for activities out

of India and in India in respect of the contract dated 30th September

2016. The R-series Contract was executed after the judgment of the

High Court dated 9th May 2017, referred to above. The High Court had

no occasion to consider the R-series contract.

22. On or about 8th May 2019, the Appellant applied for a certificate

under Section 197 of the IT Act for deduction of Nil tax on payments

received from ONGC for activities carried on outside India, in the

Financial Year 2019-20 in relation to the aforesaid contracts.

23. The Respondent, Income Tax Authorities raised queries on its

portal, to which the Appellant responded by a letter dated 21st May

2019 addressed to the Respondent No.1. On further query from the

Income Tax Department, the Appellant filed a reply on 13th June 2019

pointing out that no income from activities outside India could be

brought to tax in India. The Appellant also submitted a table showing

the similarities between the contracts forming the subject-matter of the

decision of the High Court and the contracts in the year under

consideration, that is, the Financial Year 2019-20.

24. By the said letter dated 13th June 2019, the Appellant pointed out

that for over two and half months since the start of the Financial Year

2019-20, no certificates had been issued to the Appellant under Section

197 of the IT Act as a result of which the Appellant was suffering undue

hardship as its cash flow was being hampered. The Appellant, therefore,

requested the Respondent No.1 to issue certificate at the earliest. On

17th June 2019, the Appellant submitted activity-wise key dates for each

platform under the R-Series and LEWPP Contracts to the Respondent

No.1.

25. By letter dated 22nd June 2019, addressed to the Respondent No.1,

the Appellant answered further queries. However, in view of the

financial crunch faced by the Appellant, the Appellant requested :

“The Applicant humbly submits that since it is facing

financial hardship as the first quarter of FY 2019-20 has

come to an end and it is yet to have the lower withholding

tax certificate, the Applicant (without prejudice to its legal

position), is willing to offer a concession to have the

certificate at the tax rate of 4% plus applicable surcharge

and cess for the entire contractual revenues, which is in line

with the recently concluded assessment proceedings for AY

2016-17 in Applicant’s own case, where your goodself

concluded that the entire contractual revenues were

chargeable to tax under Section 44BB of the Act at an

effective tax rate of 4% plus applicable surcharge and cess.

In light of the above, it is our humble request to your

goodself to kindly issue the certificate at your earliest

convenience.”

26. The Appellant contends that a certificate of Nil TDS, for payments

received in respect of activities outside India, should have been issued

to the Appellant, in deference to decisions rendered by various

Appellate Authorities from the Assessment Years 2007-08 to 2015-16,

opining that income in respect of activities out of India was not taxable

in India and as also the judgments of the Delhi High Court referred to

above.

27. In the Assessment Year 2018-19, the Respondent had followed the

same approach as in the Assessment Year 2017-18 and issued a

certificate dated 10th April 2018 under Section 197 of the Act for Nil TDS

in respect of payments for activities outside India. This direction was in

respect of both LEWPP Contract as well as R-Series Contract.

28. However, in departure from the position taken in the previous

years, the Respondent No.1 issued a certificate dated 26th June 2019

under Section 197(1) of the IT Act for the Financial Year 2019-2020

corresponding to the Assessment Year 2020-2021 directing ONGC to

deduct TDS at the rate of 4% on receipts in respect of activities both

outside and inside India.

29. The Appellant filed a Writ Petition under Article 226 of the

Constitution of India being Writ Petition (C) No.8527 of 2019, inter alia,

challenging the said certificate dated 26th June 2019. The Writ Petition

has been dismissed by the judgment and order impugned in this Court.

30. Mr. Ganesh appearing on behalf of the Appellant forcefully argued

that the Respondent No.1 had erred in law in not granting Nil rate TDS

to the Appellant for the financial year 2019-20 under Section 197 of the

IT Act.

31. Mr. Ganesh argued that Appellant was assessed for Assessment

Years 2007-08, 2008-09 and 2009-10 in respect of contracts similar to

the above noted contracts and was held not to be taxable in India. Even

though the Assessing Authority had, from the Assessment Year 2007-08

taken the view that revenue in respect of activities outside India were

taxable in India, the ITAT being the Appellate Authority, held to the

contrary. The Appellate Authority had all along taken the stand that the

Appellant has no Permanent Establishment in India and no such income

from activities outside India would be chargeable to tax in India.

32. Mr. Ganesh relied upon the judgment rendered by the High Court

in the Appellant’s own case in respect of the Assessment Years 2007-08

and 2008-09 which is reported in (2016) 383 ITR 648. The Delhi High

Court analyzed the contract of the Appellant with Respondent ONGC

and held that the project office of the Appellant did not constitute a

Fixed Base Permanent Establishment under the provisions of the Double

Taxation Avoidance Agreement. The question of splitting profits arising

from the contract into two categories, that is, profits attributable to

India and profits attributable to overseas activities did not arise. The

judgment was followed in respect of appeal of the Respondent for the

Assessment Year 2009-10. Mr. Ganesh argued that R-Series and LEWPP

Contracts relevant to the Assessment Year in question that is

Assessment Year 2020-21 corresponding to the Previous Year 2019-20,

are identical to the contracts considered by the Appellate Authority in

Appellant’s own case in relation to the Assessment Years 2007-08,

2008-09 and 2009-10.

33. The Delhi High Court issued notice to the Revenue Authorities, in

response to which a counter affidavit was filed enumerating the grounds

and reasons justifying the issuance of the impugned certificate.

34. After hearing the parties at length, the High Court held that an

administrative decision was subject to judicial review under Article 226

of the Constitution of India only on grounds of perversity, patent

illegality, irrationality, want of power to take the decision and procedural

irregularity. Judicial review is directed not against the decision but the

decision making process. The High Court did not find any such

arbitrariness in the approach of the concerned Respondents in the

exercise of their jurisdiction, that called for interference under Article

226 of the Constitution of India. The High Court found that the reasons

in the note-sheet could not be said to be so fallacious, unfair or

unreasonable that they required intervention of the High Court.

35. The High Court further observed and held:

“18. Sub Section (1) of Section 195 of the Act provides that any

person responsible for paying to a non-resident, any sum

chargeable to tax under the provisions of the Act, shall, at the

time of credit of such income to the account of the payee, or at

the time of the payment thereof in cash or by the issue of a

cheque or draft or any other mode, whichever is earlier, deduct

income-tax thereon at the rates enforced.

***

24. … As of now, we are not concerned with a regular

assessment proceeding but, with determination of rate of tax

deduction. On perusal of reasons, it becomes manifest that

during the course of enquiry under Section 197 of the Act, the

petitioner was asked to furnish the details regarding the scope

and nature of the aforenoted contracts. Revenue contends that

for the R-series contracts, the petitioner has made contradictory

statement regarding commissioning period and period of as-built

documentation etc. Petitioner, in its submission dated

22.06.2019, contends that commissioning work is not undertaken

by them for the R-series contracts, and the same is to be

performed by ONGC. Without going into the question as to

whether the petitioner's stand is contradictory, we may note that

the Assessing Officer while exercising its power under Section

197, during the course of the enquiry, cannot undertake an

exhaustive exercise to determine this issue conclusively. We find

force in the submissions of Mr. Raghvendra Kumar Singh that the

question as to whether the petitioner has constituted a PE,

cannot possibly be undertaken in the enquiry having regard to

the time frame permissible under law for deciding the application

under Section 197 of the Act. The reasons shown to us also take

note of the fact that in the immediate preceding years i.e., AY2016-17 and AY- 2017-18, for which regular assessment has been

completed, petitioner has been held to have a Permanent

Establishment (PE) in India, and its total income from the

contracts with ONGC have been held to be taxable under the IT

Act. Section 44BB of the Act is applied, and 10% of the

contractual receipts were considered as business profits. The rate

of tax being 40%, a certificate was, accordingly, issued @ 4%. For

the other assessment years as well, assessment has been

completed and appeal is pending before the appellate

authorities. The Petitioner, obviously, disputes the finding of the

Respondent as erroneous and misplaced, on the ground that for

AY- 2015-16, the first appellate authority-following the decision of

this Court in petitioner's own case, has held that the petitioner

has no PE in India. Be that as it may, for AY-2016-17 and 2017-18,

this question has been determined against the petitioner. It is

well-settled proposition that in tax jurisprudence, the principle of

res judicata is not applicable to income tax proceedings... [Ref:

New Jehangir Vakil Mills Co. Ltd. v. CIT: [1963] 49 ITR 137 (SC)

(Full bench)]. "It is well settled that in matters of taxation there is

no question of res judicata because each year's assessment is

final only for that year and does not govern later years, because

it determines only the tax for a particular period." [Ref:

Instalment Supply (P) Ltd. v. Union of India : AIR 1962 SC 53

(Constitution bench)].

***

27. In the present case, there cannot be any dispute that

existence of PE is required to be determined by law for each year

separately on the basis of the scope, extent, nature and duration

of activities in each year. In this regard, the contracts in question

i.e. R-series contracts dated 07.02.2018 and LEWPP series

contracts dated 30.09.2016 would have to be taken into

consideration. Concededly, this Court in its decision dated

09.05.2017 did not have the occasion to consider the R-series

contract dated 07.02.2018. The Court only considered the

contract dated 30.09.2016 as noted in para -1 of the said

decision. There is thus, a distinguishing feature - the R-series

contract has not been considered by this Court in its order dated

09.05.2017. Moreover, in the instant case, the reasons record

that the two contracts are indivisible, and the petitioner cannot

divide the contractual receipts in two categories viz. inside India

and Outside India services. The installation PE will come into

existence, if "project or activity continues for a period of more

than 9 months" under Indo-UAE DTAA. This question of fact will

have to be determined separately for each assessment year, and

we are informed that for AY-2016-17 and AY-2017-18, the

determination is presently against the petitioner. We cannot

accept the petitioner's contention that the assessment

proceedings for the AYs 2007-08, 2008-09 and 2009-10 have

already determined this question in favour of the petitioner and

there is no change in any circumstances. This question would

require to be determined and finding of the fact would have to be

arrived at, by a careful consideration of terms of contract,

determination whereof cannot be undertaken in the proceedings

under Section 197 of the Act.

***

29. Further, the petitioner's contention that under each of the

contracts, the installation activities were completed in less than

9 months, and that the scope of R-series contracts, did not

include commissioning activities, are all factual aspects which

cannot be examined while exercising judicial review over the

decision of the respondent under Section 197 of the Act.

30. The petitioner has relied upon the judgments in IshikawajimaHarima Heavy Industries: [2007] 288 ITR 408 (SC) and Hyundai

Heavy Industries: [2007] 291 ITR 482 (SC), which do not appear

to be applicable to the facts of the present case. In Ishikawajima

(supra), the Supreme Court held that for a non-resident entity to

be taxed in India, it should carry on business through a

permanent establishment in India, and income taxed is on the

basis of extent appropriate to the part played by permanent

establishment in those transactions, and that only such part of

the income, as is attributable to the operations carried out in

India can be taxed in India. In the said case, a clear distinction

could be identified between onshore and offshore activities. In

the present case, the respondents contend that no such

distinction is clearly identifiable from the contracts in question.

Further, the said cases (Ishikawajima (supra) and Hyundai heavy

Industries (supra)) relate to assessment proceedings, whereas, in

the present case, we are concerned with proceedings for grant of

certificate under section 197. The scope of enquiry and

investigation in both these proceedings is different, especially

after the introduction of Explanation 2 to section 195 and at the

stage of section 197 proceedings, the question of existence of

permanent establishment is not required to be gone into.

Therefore, having regard to the aforesaid provision, we cannot

direct the Revenue to hold that the petitioner does not have a PE

and give the consequent effect of such finding while deciding an

application under Section 197 of the Act. Determination of all

these questions would have to be undertaken during the course

of regular assessment.

***

32. ...However, we cannot ignore the fact that Petitioner took

categorical stand and prevailed upon the revenue to accept the

declaration made in the said communication. Although the

declaration was qualified, yet, since the petitioner requested the

respondent to deduct the tax @ 4% + applicable surcharge &

cess for the entire contractual revenues, revenue was justified in

accepting the same and the petitioner cannot be permitted to

resile there from, once the department has accepted petitioner's

proposal.”

36. It is well settled that the obligation to deduct TDS is limited to

appropriate proportion of income chargeable to tax under the IT Act that

forms part of the gross sum of money payable to the non-resident. A

person paying any sum to a non-resident is not liable to deduct any tax

at source if such sum is not chargeable to tax under the IT Act, as held

by this Court in G E India Technology Centre Pvt. Ltd. v.

Commissioner of Income Tax and Another

37. The High Court rightly held that the question of whether the

Appellant had PE, could not possibly be undertaken in an enquiry for

issuance of Certificate under Section 197 of the IT Act, having regard to

the time-frame permissible in law for deciding an application, more so,

when regular assessment had been completed in respect of the

immediate preceding year and the Appellant found to be taxable under

the IT Act at 10% of the contractual receipts. The Assessing Authority

found that the Appellant had PE in India in the concerned Assessment

Years. The appeal of the Appellant is possibly pending disposal.

38. As held by the High Court, it is well settled that the principle that

res judicata is not applicable to income tax proceedings because

assessment for each year is final only for that year and does not cover

later years.

39. Whether the Appellant had PE or not, during the Assessment Year

in question, is a disputed factual issue, which has to be determined on

the basis of the scope, extent, nature and duration of activities in India.

Whether project activity in India continued for a period of more than

nine months, for taxability in India in terms of the AADT, is a question of

fact, that has to be determined separately for each Assessment Year.

1 (2010) 327 ITR 456 (SC)

40. It may be true, that for a non-resident entity to be taxed in India,

it should carry on business through a Permanent Establishment in India,

as held by this Court in Ishikawajima-Harima Heavy Industries Ltd.

v. Director of Income Tax, Mumbai

and Commissioner of Income

Tax and Anr. v. Hyundai Heavy Industries Co. Ltd.

. However, the

judgments would only be attracted if there were a definite finding that

the Appellant did not have any PE in India during the Assessment Year in

question, which as stated above, would also depend on the duration and

scope of the activities in India. The nature, extent and the duration of

work done in India, could vary from year to year.

41. It is reiterated that in the immediately preceding Assessment

Year, the Assessing Authority proceeded to assess the Appellant on the

basis that it did have a Permanent Establishment (PE) in India.

Moreover, as rightly held by the High Court, Ishikawajima-Harima

Heavy Industries (supra) and Hyundai Heavy Industries (supra)

related to assessment proceedings whereas this case pertains to

issuance of certificate under Section 197 of the IT Act. The scope of

enquiry and investigation in proceedings for grant of Certificate under

Section 197 of the IT Act is different from the scope of assessment

proceedings. The High Court rightly declined to direct the Revenue to

hold that the Appellant did not have PE in India.

2 (2007) 288 ITR 408 (SC)

3 (2007) 291 ITR 482 (SC)

42. By its letter dated 22nd June 2019, referred to above, the Appellant

made a request to the Revenue for issuance of Certificate under Section

197(1) of the IT Act permitting deduction of TDS at the rate of 4% plus

applicable surcharge and cess, for all contractual receipts, in line with

assessment proceedings for the Assessment Year 2016-2017 without

prejudice to its legal position, since the Appellant had been facing

financial hardship and urgently required funds. On 26th June 2019, the

Respondent No.1 issued the impugned Certificate directing ONGC to

deduct TDS at the rate of 4% for all sums receivable in respect of

activities both outside and inside India.

43. The impugned Certificate being as per the request of the

Appellant, it is not open to the Appellant to make a volte-face and

challenge the impugned Certificate.

44. It may be true that the letter of request dated 22nd June 2019, of

the Appellant, referred to above, for issuance of a Certificate under

Section 197 of the IT Act, for TDS at the rate of 4% on all receipts was

without prejudice to the rights in law and contentions of the Appellant.

Such a request without prejudice to the rights and contentions of the

Appellant would not operate as estoppel against the Appellant in any

Assessment Proceedings, Appellate proceedings or any other

proceedings. However, the impugned Certificate having been issued as

per the Appellant’s own request, the Appellant is estopped from

questioning the impugned Certificate by initiation of proceedings under

Article 226 of the Constitution of India. The Appellant itself made a

request for Certificate for TDS at the rate of 4% on all receipts.

45. There is no such infirmity in the reasoning of the High Court which

calls for interference of this Court under Article 136 of the Constitution

of India. As rightly held by the High Court, since the Appellant requested

issuance of Certificate for deduction of TDS at 4% of taxable value it is

not for the Appellant to challenge the certificate. Moreover, it appears

that in the final assessment for one or two preceding Assessment Years

it was found that the Appellant did have PE in India. Appeals are

pending. In any event, Tax deducted at source is adjustable against the

tax, if any, ultimately assessed as payable by the Assessee and any

excess tax deducted is refundable with interest. Interference is not

warranted at this stage.

46. Moreover, in course of hearing, Counsel for the Revenue handed

us a Draft Assessment Order, issued in respect of the Assessment Year

in question, that is 2020-21, holding that the Appellant had PE in India

and was liable to tax in India under the IT Act.

47. Needless to mention that any observation made by this Court or

by the High Court will not influence the final assessment which has to

be made in accordance with law taking into account all relevant facts

and circumstances or any appeal therefrom. In the event, it is found

that the Appellant is not liable to tax, the Appellant will be entitled to

refund of TDS with interest.

48. The Appeal is dismissed.

…….................................J

[ INDIRA BANERJEE ]

NEW DELHI;

JULY 29, 2022

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4964 OF 2022

(ARISING OUT OF SLP(C) No. 9233 OF 2020

NATIONAL PETROLEUM CONSTRUCTION COMPANY ...APPELLANT

Versus

DEPUTY COMMISSIONER OF INCOME TAX,

CIRCLE 2(2)(2), INTERNATIONAL TAXATION,

NEW DELHI & ANR. ...RESPONDENTS

J U D G M E N T

J.K. Maheshwari, J.

Leave granted.

2. After going through the judgment and the opinion formed

by esteemed Justice Ms. Indira Banerjee, I respectfully disagree

to the conclusions as drawn for the reasons to follow.

3. On perusal of detailed facts as stated in the order, it is

clear that appellantcompany is incorporated under the laws of

United Arab Emirates (in short ‘UAE’) and is engaged in the

business of Surveys (preengineering, preconstruction/preinstallation and postinstallation), Design, Engineering,

Procurement, Fabrication, Anticorrosion & Weight coating (in

case of rigid pipeline, Loadout, Tiedown/Sea fastening Towout/Sailout, Transportation, Installation, Hookup, Installation

of submarine pipeline, installation and hookup of submarine

cables, Modifications on existing facilities, Testing, Precommissioning, Commissioning of entire facilities as described

in the biding document. Since the year 20072008, the ONGC

was granting contract to the appellant to carry out the work.

For the assessment years 20072008 and 20082009, the CSeries and LEWPP contracts were granted to the appellant on

year to year basis. After completion of those contracts as per

the record of the case, the payment of zero percent tax on the

income outside India in terms of the assessments were in

question. The High Court of Delhi passed the order on

29.01.2016 for the said assessment years i.e. 20072008 and

20082009 to the said contracts wherein it was held that

assessee did not have the PE in India and earned profit

attributable to that PE and in fact the income was from the

activities carried out outside of India. However, the orders of

assessment for the years 20072008 and 20082009

respectively as well as the corresponding orders passed by the

ITAT in the corresponding appeals were set aside. It has been

brought to knowledge that Civil Appeal No.8761/2016 filed

against the said order is pending before this Court.

4. On perusal of the provisions of the Income Tax Act (for

short “IT Act”), it reveals the proceedings of the assessment falls

under Chapter XIV of the IT Act, which includes return of

income, permanent account number, scheme for submission of

returns through tax return and its preparation, assessment,

rectification of mistake etc. While the present case relates to

certificates for deduction at lower rate or no deduction of

income at source, which falls in Chapter XVII of the IT Act.

Therefore, what is the recourse and considerations available to

the assessing officer at the time of issuance of the certificate

under Section 197(1) of the IT Act or he has to rely upon the

assessment orders of the previous years.

5. While examining the said issue in the facts and context of

the present case, some provisions are required to be referred.

As per Section 6(3) of the IT Act for the resident in India, the

income inside the country is taxable. Under subsection (3), it

is specified that if any Indian company is said to be a resident

in India in any previous year or its place for effective

management in that year was in India the income of such is

taxable. By the explanation, the place of effective management

has been clarified whereby it is clear that if any commercial

decision necessary for the conduct of a business of an entity as

a whole or in substance is made, it would be called as a place

of effective management.

6. As per Section 5(2) of the IT Act, it is clear that subject to

the other provisions of the Act, the total income of any previous

year of a person who is a nonresident includes all income from

whatever sources derived either is received or is deemed to be

received in India in such year by or on behalf of such person; or

accrues or arises or is deemed to accrue or arise to him in India

during such year. Explanation (1) of it clarifies that income

accruing or arising outside India shall not be deemed to be

received in India within the meaning of this section on account

of the fact that it has been taken into account in the balance

sheet prepared in India. Explanation (2) removes the doubts

whereby the income which has been included in the total

income of a person on the basis that it has accrued or arisen or

is deemed to have accrued or arisen to him shall not again be

so included on the basis that it is received or deemed to be

received by him in India. The aforesaid provision has been

brought with an intent to check the double taxation. Thus,

from above for clarity, it is reiterated that any income outside

India to a nonresident would not be taxable in India even if it

is specified in the balance sheet prepared in India.

7. By a judgment of this Court in the case of G.E. India

Technology Centre Pvt. Ltd. (supra) in the context of Section

195(1), interpretation of the word “chargeable” under the

provisions of IT Act has been made by which it is clarified that

a person paying interest or any other sum to a nonresident is

not liable to deduct tax if such sum is not chargeable to tax

under the I.T. Act. Further, the Court clarified where there is

no obligation on the part of the payer and no right to receive

the sum by the recipient and that the payment does not arise

out of any contract or obligation between the payer and the

recipient but is made voluntarily, such payments cannot be

regarded as income under the I.T. Act.

8. It is not in dispute in the present case that incorporation

of the appellant’s company is under the laws of UAE. In the

context, the treaty/agreement entered by India with foreign

countries including UAE, are recognized under Chapter IX

starting from Section 90 onwards and for avoidance of double

tax, the procedure has been prescribed in Chapter X. In the

above said agreement/treaty between India and UAE known as

Agreement of Avoidance of Double Taxation (in short “AADT”)

was executed. Clause (1) and (6) of Article 7 of the said

agreement are relevant to the present case, which are

reproduced for ready reference as under:

“(1). The profits of an enterprise of a Contracting

State shall be taxable only in that State unless

the enterprise carries on business in the other

Contracting State through a permanent

establishment situated therein. If the enterprise

carries on business as aforesaid, the profits of the

enterprise may be taxed in the other State but

only so much of them as is attributable to that

permanent establishment.”

“(6). For the purposes of preceding paragraphs,

the profits to be attributed to the permanent

establishment shall be determined by the same

method year by year unless there is good and

sufficient reason to the contrary.”

Perusal of the aforesaid makes it clear that enterprises of a

contracting state shall be taxable in the said state unless the

business is carried out in other contracting state through a

permanent establishment situated there. It is further clarified

that the profit of the enterprises may be taxed in other state to

the extent of the profit attributable to that PE. The

determination thereof shall be on year to year basis and the

deviation, if any, may be based on good and sufficient reasons

to the contrary. Thus, it is clear that the income earned in

India may be taxable even by an entity which is not

incorporated in India but the profit earned for a contract

carried out outside India by such entity shall not be taxable.

The issue regarding establishment of PE at a place where the

work is required to be executed, and profit earned attributable

to that PE is a matter of enquiry based on the material brought

on record during assessment for the said assessment year.

9. But for the purpose of tax deduction at source at lower

rate or no deduction during contractual period, the assessing

officer has been empowered under Section 197(1) to issue a

certificate to that effect in the manner so prescribed as

specified in Chapter XVII of Income Tax Act which relates to

collection and recovery of tax. On perusal of the scope of the

said Chapter, it is clear that the assessment in respect of the

income is required to be made later in relevant assessment year

but the tax on such income may be payable by deduction at

source by way of advance payment or as specified in SubSection 1A of Section 92 of IT Act as the case may be. As the

present case relates to quashment of the TDS certificate dated

26.06.2019 and seeking relief to issue the fresh certificate

under Section 197, therefore, for ready reference, it is hereby

reproduced as thus:

197. Certificate for deduction at lower rate.

(1) Subject to rules made under sub-section (2A),

where, in the case of any income of any person

or sum payable to any person, income-tax is

required to be deducted at the time of credit or,

as the case may be, at the time of payment at

the rates in force under the provisions of sections

192, 193, 194, 194A, 194C, 194D, 194G, 194H,

194-I, 194J, 194K, 194LA, 194LBB, 194LBC, 194M,

49[194-O] and 195, the Assessing Officer is

satisfied that the total income of the recipient

justifies the deduction of income-tax at any lower

rates or no deduction of income-tax, as the case

may be, the Assessing Officer shall, on an

application made by the assessee in this behalf,

give to him such certificate as may be

appropriate.

(2) Where any such certificate is given, the

person responsible for paying the income shall,

until such certificate is cancelled by the

Assessing Officer, deduct income-tax at the rates

specified in such certificate or deduct no tax, as

the case may be.

(2A) The Board may, having regard to the

convenience of assessees and the interests of

revenue, by notification in the Official Gazette,

make rules specifying the cases in which, and the

circumstances under which, an application may

be made for the grant of a certificate under subsection (1) and the conditions subject to which

such certificate may be granted and providing for

all other matters connected therewith.

Bare reading of it makes clear that in the case of any income of

the person, income tax is required to be deducted at the time of

credit or as the case may be at the time of payment at the rates

in force as per various sections specified, including Section 195

subject to the rules made under SubSection 2A. The rules have

been framed to carry out the purpose of the act which are

known as Income Tax Rules, 1962. The present case relates to

Section 195 of the IT Act which pertains to the payment of tax

deducted at source by nonresidents. As per the provision of

Section 197, if the assessing officer is satisfied that the total

income of the recipient justifies any lower rate or no deduction

of income tax as the case may be, he shall issue a certificate to

the assessee on an application submitted by him. The said

certificate shall be valid until it is cancelled by the assessing

officer. Section 2A was introduced conferring powers to the

Board having regard to the convenience of the assessee and the

interest of revenue, and the rule is made to submit application

and the conditions for issuance of certificate, notifying it in

Official Gazette. Pursuant thereto, a notification dated

29.03.2011 was published in the Official Gazette specifying the

cases and the circumstances under which the application may

be made for grant of certificate and, the conditions for

satisfaction of assessing officer who may grant certificate.

10. By way of the said notification dated 29.03.2011,

amendment in the Income Tax Rules, 1962 was made and these

Rules are known as Income Tax (Second Amendment) Rules,

2011 by which Rule 28 AA has been added. The said rule was

further amended by notification dated 25.10.2018. The said

amended rules are relevant for this case, however, reproduced

as thus:

“Certificate for deduction at lower rates or

no deduction of tax from income other than

dividends.

28AA . (1) Where the Assessing Officer, on an

application made by a person under sub-rule (1)

of rule 28 is satisfied that existing and estimated

tax liability of a person justifies the deduction of

tax at lower rate or no deduction of tax, as the

case may be, the Assessing Officer shall issue a

certificate in accordance with the provisions of

sub-section (1) of section 197 for deduction of tax

at such lower rate or no deduction of tax.

(2) The existing and estimated liability referred to

in sub-rule (1) shall be determined by the

Assessing Officer after taking into consideration

the following:—

(i) tax payable on estimated income of the

previous year relevant to the assessment

year;

(ii) tax payable on the assessed or returned 2[or

estimated income, as the case may be, of

last four] previous years;

(iii) existing liability under the Income-tax Act,

1961 and Wealth-tax Act, 1957;

(iv) advance tax payment 3[tax deducted at

source and tax collected at source for the

assessment year relevant to the previous

year till the date of making application under

sub-rule (1) of rule 28];

(v) omitted on 25.10.2018

(vi) omitted on 25.10.2018

(3) The certificate shall be valid for such period of

the previous year as may be specified in the

certificate, unless it is cancelled by the Assessing

Officer at any time before the expiry of the

specified period.

['(4) The certificate for deduction of tax at any

lower rates or no deduction of tax, as the case

may be, shall be issued direct to the person

responsible for deducting the tax under advice to

the person who made an application for issue of

such certificate:

Provided that where the number of persons

responsible for deducting the tax is likely to

exceed one hundred and the details of such

persons are not available at the time of making

application with the person making such

application, the certificate for deduction of tax at

lower rate may be issued to the person who made

an application for issue of such certificate,

authorising him to receive income or sum after

deduction of tax at lower rate.

(5) The certificates referred to in sub-rule (4)

shall be valid only with regard to the person

responsible for deducting the tax and named

therein and certificate referred to in proviso to the

sub-rule (4) shall be valid with regard to the

person who made an application for issue of such

certificate.

(6) The Principal Director General of Income-tax

(Systems) or the Director General of Income-tax

(Systems), as the case may be, shall lay down

procedures, formats and standards for issuance of

certificates under sub-rule (4) and proviso thereto

and the Principal Director General of Income-tax

(Systems) or the Director General of Income-tax

(Systems) shall also be responsible for evolving

and implementing appropriate security, archival

and retrieval policies in relation to the issuance of

said certificate.”

11. From the above, it is clear for issuance of a certificate

under Section 197 of the IT Act, an application shall be made to

assessing officer under subrule (1) of Rule 28. The assessing

officer after recording satisfaction that existing and estimated

tax liability justifies the deduction of tax at lower rate or no

deduction of tax as the case may be shall issue certificate.

While exercising the power to issue a certificate, the assessing

officer is required to follow the procedure as per subrule (2).

The assessing officer shall consider the existing and estimated

liability that what may be tax payable on estimated income of

the previous year; tax payable on the assessed or returned

income of the last four years from previous year; existing

liability under the IT Act; advance tax payment i.e. tax

deducted and collected at source for the assessment year

relevant to the previous year till the date of making application

under subrule (1) of Rule 28. Thus, for the purpose of

issuance of certificate under Chapter XVII of Section 197 of the

IT Act, the procedure for determination has been prescribed to

the assessing officer on which satisfaction may be recorded by

him.

12. It is further required to say that for assessment under

Section 143, the assessment of total income or loss may be

computed by the assessing officer in a return filed by the

assessee for the said assessment year after making adjustment

and disallowing exemptions wrongly claimed. Thereafter, the

recovery can be made by an order of the competent officer as

per Second Schedule of the IT Act read with Sections 222 and

276 alongwith Sections 220 & 221 with interest and penalty.

Thus, in my considered view the issuance of the certificate

under Section 197(1) is based on the existing and estimated tax

liability after recording satisfaction by assessing officer

following the procedure so prescribed, in rules, but the

procedure for assessment as specified in Chapter XIV of the IT

Act is different.

13. The High Court in the impugned order relied upon the

proceedings of the Revenue Department, which has been

referred in para 10 of the judgment. As per the proceedings

referred, the department has acknowledged the High Court

order dated 29.01.2016 and said that for assessment years

20072008 to 20102011 there was no PE in India, but the

department filed the appeal C.A. No.8761/2016 is pending

before this Court. In para 10(7), the High Court further referred

the decision of Delhi High dated 09.05.2017 passed in W.P.(C)

No.2117/2017 and CM No.9268/2017. The said judgment is

solely on the issue of issuance of the certificate under Section

197 relates to the financial year 20162017. As per the ratio of

the said judgment, it is clear that the certificate issued by the

respondent no.1 regarding deductions of the TDS at the rate of

4% on the entire payment made by the ONGC was set aside.

Following the said decision, the department issued the

certificate for financial year 20162017 at the rate of 4%

excluding surcharge and cess for inside India revenue and at

the rate of 0% for outside India revenue. Further for financial

years 20172018 and 20182019 certificates were issued

following the said decision of Delhi High Court for both type of

contracts i.e. LEWPP and RSeries. Thereafter, it was recorded

that assessments for assessment years 20152016 and 2016

2017 have been completed with a finding that activities of the

appellant were covered under Section 44BB of the IT Act. It was

further recorded that the assessment for assessment year

20172018 was selected under CASS which is still pending.

Thereafter, noting was made that it is difficult to bifurcate the

revenue generated by onshore and offshore activities. However,

the rate of deduction proposed was at the rate of 4%. The

relevant excerpt of note sheets further reflect that the demand

of existing liability was Rs.35.88 crores for the year 201516

and 201617 but later it was reduced to Rs.2.67 crores out of

which Rs.2.63 crores pertained to assessment year 201718

which was still under scrutiny for assessment, thus there

appear no existing demand. The said note sheets of the

Revenue do not reflect that clause (i), (ii), (iii) and (iv) of Rule

28AA(2) of Rules regarding estimated and assessed liability of

last four previous years; existing liability and advance tax

payment i.e. deducted and collected at source till the date of

submitting application have been considered for determination,

and the assessing officer had applied its mind prior to issuance

of desired certificate.

14. On perusal of the findings recorded in the impugned

order, it reveals that Delhi High Court made unreasonable

attempt to distinguish previous order dated 09.05.2017 relying

the note sheets of the revenue and tried to distinct LEWPP and

RSeries contracts. In my considered view on admitting the

certificates @ 0% tax deductions for both LEWPP and RSeries

contracts for the preceding financial years, the High Court was

not justified to make distinction between two types of contracts.

In fact the Court must see the satisfaction recorded by the

assessing officer after determination of the issues specified in

Rule 28AA(2). The appellant reiterated that the terms of LEWPP

contract and RSeries contract were identical while department

without disputing the said fact relied upon the orders of

assessment passed in previous years without bringing on

record the fact of estimated liability. In my view, distinction

drawn, accepting the contention of the revenue by the High

Court ignoring admission of issuing certificate for both types of

contracts is completely misplaced. In fact, the certificate under

Section 197(1) is issued during a financial year and on closing

of the said financial year, assessment may be made after

submission of the return of income and documents with

respect to the income from the contract of that particular year.

The department may enquire about establishment of PE and

income attributable to that PE in assessment proceeding but

while dealing the issue of issuance of certificate under Section

197(1) relying upon said issues by the High Court is not

justified. During course of hearing, the counsel for the

appellant handed over two orders dated 08.09.2021 passed by

Commissioner of Income Tax (Appeals) for assessment year

20162017 and 20172018 allowing the appeals filed by the

appellant challenging the assessment order for respective

assessment year. While allowing the appeal, Commissioner of

Income Tax held that the appellant did not have PE during

relevant financial year and accordingly in absence of PE

contract receipts were not taxable in India.

15. The record of the case indicates that for the financial year

201718 two certificates each dated 08.06.2017 (Annexures P6

& P7) were issued for zero TDS which is related to the

assessment year 201819. Similarly, for financial year 201819

(assessment year 201920) two certificates dated 10.04.2018

and 08.05.2019 (Annexures P8 & P9 respectively) were issued

for zero TDS. Therefore, after the order of the High Court dated

09.05.2017, it may be a relevant consideration to assessing

officer to record satisfaction, which has not been considered by

the High Court. The reply of the appellant dated 22.06.2019

has been referred in the impugned order stating that the

appellant reserve its right subject to legal objections and

requested for issuance of certificate at the rate of 4% plus

applicable surcharges and cess because of financial hardship.

In my opinion, the said letter cannot influence the wisdom of

the Court, where the prescribed procedure under Rule 28AA

has not been followed by the assessing officer. However, on the

basis of letter dated 22.06.2019 no lineage contrary to

prescribed procedure can influence the Court.

16. As per discussion made above, in my view, since there

was no change in circumstances and the situation of the

appellant in the financial years 20172018 and 20182019

(assessment years 201819 and 201920) respectively and at

the financial year 201920 in question (assessment year 2020

21), are the same, however, the principle of consistency ought

to be followed while considering the application under Section

197 of the IT Act. This Court in the case of M/s Radhasoami

Satsang, Saomi Bagh, Agra v. Commissioner of Income Tax,

(1992) 1 SCC 659 has categorically upheld the principle of

consistency in following words:

“16. We are aware of the fact that strictly

speaking res judicata does not apply to income

tax proceedings. Again, each assessment year

being a unit, what is decided in one year may not

apply in the following year but where a

fundamental aspect permeating through the

different assessment years has been found as a

fact one way or the other and parties have

allowed that position to be sustained by not

challenging the order, it would not be at all

appropriate to allow the position to be changed in

a subsequent year.

17. On these reasonings in the absence of any

material change justifying the Revenue to take a

different view of the matter — and if there was no

change it was in support of the assessee — we do

not think the question should have been

reopened and contrary to what had been decided

by the Commissioner of Income Tax in the earlier

proceedings, a different and contradictory stand

should have been taken. We are, therefore, of the

view that these appeals should be allowed and

the question should be answered in the

affirmative, namely, that the Tribunal was

justified in holding that the income derived by the

Radhasoami Satsang was entitled to exemption

under Sections 11 and 12 of the Income Tax Act

of 1961.

18. Counsel for the Revenue had told us that the

facts of this case being very special nothing

should be said in a manner which would have

general application. To are inclined to accept this

submission and would like to state in clear terms

that the decision is confined to the facts of the

case and may not be treated as an authority on

aspects which have been decided for general

application”

17. Further, upholding the dictum laid down in Radhasoami

(supra), in case of Bharat Sanchar Nigam Limited and Anr. v.

Union of India and Ors., (2006) 3 SCC 1, this Court has held

that if facts and law in a subsequent assessment year are the

same, no authority whether quasijudicial or judicial can

generally be permitted to take a different view in following

words:

“20. The decisions cited have uniformly held that

res judicata does not apply in matters pertaining

to tax for different assessment years because res

judicata applies to debar courts from entertaining

issues on the same cause of action whereas the

cause of action for each assessment year is

distinct. The courts will generally adopt an earlier

pronouncement of the law or a conclusion of fact

unless there is a new ground urged or a material

change in the factual position. The reason why

the courts have held parties to the opinion

expressed in a decision in one assessment year

to the same opinion in a subsequent year is not

because of any principle of res judicata but

because of the theory of precedent or the

precedential value of the earlier pronouncement.

Where facts and law in a subsequent assessment

year are the same, no authority whether quasijudicial or judicial can generally be permitted to

take a different view. This mandate is subject

only to the usual gateways of distinguishing the

earlier decision or where the earlier decision is

per incuriam. However, these are fetters only on

a coordinate Bench which, failing the possibility

of availing of either of these gateways, may yet

differ with the view expressed and refer the

matter to a Bench of superior strength or in some

cases to a Bench of superior jurisdiction.”

18. In view of the foregoing discussion, in my considered

opinion the order passed by the High Court is without

considering the perspective and scope of issuance of the

certificate for deduction of tax at lower rate or no deduction at

tax and also without following the prescribed procedure. The

High Court has wrongly distinguished the previous judgement

dated 09.05.2017 on the premises which is not tenable, and

relied upon undertaking dated 22.06.2019 of appellant

submitted perforce. After due consideration in my view High

Court has committed error in dismissing the writ petition;

therefore, I am unable to concur the opinion of the esteemed

sister Judge.

19. During hearing, it is said that against the previous

judgment of Delhi High Court dated 29.01.2016 C.A.

No.8761/2016 is pending, which relates to assessment orders

pertaining to financial years 20072008 to 20092010, but it

cannot be connected to the issue of certificate under Section

197(1) of the IT Act for the year 20192020. The other judgment

of Delhi High Court dated 09.05.2017 directly deals the

issuance of the certificate under Section 197(1) of the IT Act.

For the reasons mentioned in detail I endorse the view taken by

Delhi High Court as correct and plausible view. Thus, it is

made clear here that the TDS certificate granted under Section

197 (1) shall be provisional subject to the assessment of the

returned income.

20. In view of the foregoing, the appeal filed by the appellant

is hereby allowed setting aside the order of the High Court with

a direction to the respondent to reconsider the application of

the appellant and issue certificate following the prescribed

procedure.

21. Resultantly, this appeal is hereby allowed to the extent

indicated hereinabove.

……………………………J.

[J.K. MAHESHWARI

]

NEW DELHI;

July 29, 2022

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4964 OF 2022

(Arising out of SLP (C) No. 9233 of 2020)

NATIONAL PETROLEUM CONSTRUCTION COMPANY … Appellant(s)

VERSUS

DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 2(2)

INTERNATIONAL TAXATION NEW DELHI & ANR. … Respondent(s)

O R D E R

Leave granted.

In view of the difference of opinion between us, the Registry is

directed to place the matter before Hon’ble the Chief Justice of India so

that an appropriate Bench could be constituted to hear the matter.

………………………………………………………,J.

(Indira Banerjee)

………………………………………………………,J.

(J.K. Maheshwari)

New Delhi;

July 29, 2022

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Indian Constitution

NATIONAL PETROLEUM CONSTRUCTION COMPANY versus DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2(2), INTERNATIONAL TAXATION, NEW DELHI & ANR

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