Indo Asahi Glass Co. Ltd. and Another vs Income Tax Officer and Others

This appeal arises from the judgment of the Calcutta High Court (see Indo Asahi Glass Company and Another Vs. Income Tax Officer and Others, ) which had dismissed the writ petition filed by the appellants wherein challenge was made to the show-cause notice dated May 16, 1996.

The aforesaid show-cause notice was issued on the allegation that salary had been paid to four employees who were working with the appellants in India. These employees were Japanese and the salary in question had been paid by a Japanese-company in Japan. In addition thereto, the appellants had also paid salaries to these four employees but tax had been deducted at source. The show-cause notice stated that what was paid to these four employees in Yen currency was also taxable u/s 9 of the income tax Act and tax should have been deducted at source.

Instead of filing a reply to the show-cause notice, the appellants chose to file a writ petition. The single judge dismissed the writ petition on the ground that alternative remedy was available to the appellants. In appeal, the Division Bench took the same view. Hence, this appeal by special leave.

It is contended by Dr. Pal, on behalf of the appellants, that during the pendency of this appeal, taking advantage of the Voluntary Disclosure Scheme, Asahi Glass Co. Ltd. Japan, had filed returns of income in respect of the four employees in question and had paid the entire amount of income tax payable in respect of what was paid to these four employees in Yen currency,

This and the other facts cannot be taken up for consideration by this court for the first time. In our opinion, the High Court was right in coming to the conclusion that it is appropriate for the appellants to file a reply to the show-cause notice and take whatever defence is open to them.

While affirming the decision of the High Court, we, therefore, grant ten weeks' time to the appellants to file a reply to the aforesaid show-cause notice dated May 16, 1996. On the reply being so filed, the income tax Officer will take a decision, after giving an opportunity of hearing to the appellants. The decision should be taken within four months of the reply being so filed. It will be open to the appellants to place on record the subsequent facts the effect of which will be for the income tax Officer to decide.

The appeal is disposed of in the aforesaid terms. No costs.