IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO.44466 OF 2017 (GM-RES) BETWEEN:
SMT. SHASHIKALA W/O PRAVEEN AGED ABOUT 39 YEARS RESIDING AT “RATHNA NILAYA” WARD NO.1, VAPASANDRA CHICKBALLAPUR – 562 101. … PETITIONER (BY SRI SHASHIKUMAR, FOR SRI M.K.SHIVARAM, ADVOCATE) AND:
1. SRI R.PRAVEEN S/O LATE RAMADAS AGED ABOUT 48 YEARS RESIDING AT VIJAYANAGARA BENGALURU – 560 040.
2. THE COMMISSIONER OF INCOME TAX, CENTRAL REVENUE BUILDING QUEEN’S ROAD BENGALURU – 560 002.
(RESPONDENT NO.2 IMPLEADED AS PER COURT ORDER DATED 06.10.2017) ... RESPONDENTS (BY SRI.K.V.ARAVIND, ADV. FOR R2;
VIDE ORDER DATED 06.10.2017 NOTICE TO R1 DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA R/W. SECTION 482 OF 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 PER ANNEXURE – A AND DIRECTING THE OFFICE TO RELEASE THE ENTIRE AMOUNT TO THE PETITIONER OR IN THE ALTERNATIVE DIRECT THE RESPONDENT HEREIN TO WITHDRAW THE AMOUNT IN DEPOSIT BY THE RESPONDENT I.E., (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 Sri Shashikumar, learned counsel appearing on behalf of Sri M.K. Shivaram, for petitioner, Sri K.V. Aravind, learned counsel appearing for respondent No.2.
2. By 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 from Domestic Violence Act, 2005 is seeking for the reliefs as morefully stated in the petition. Said application came to be allowed in part and first respondent herein was directed to pay a sum of Rs.2,000/- p.m. and also permitted the petitioner 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 in Crl.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 amount of Rs.25 lakhs as permanent alimony. Pursuant to said settlement, first respondent herein deposited a sum of Rs.10 lakhs on 14.12.2016 and a sum of Rs.15 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 the basis 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.
4. It is the contention of Sri Shashikumar, learned counsel appearing for the petitioner that permanent alimony received by a divorced wife 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 upon the judgment of the Hon’ble Court of Bombay in the case of Princess Maheshwari Devi vs. Commissioner of Income Tax, reported in 1984 147 ITR 258 Bom.
5. Per contra, Sri K.V. Aravind, learned standing Counsel appearing for Department - respondent 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. Having heard the learned advocates 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 does not find a place in any of these provisions.
7. In 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 as alimony, which is liable for Income Tax. Hence, 20% of the total amount be deducted as TDS and remaining amount be paid to respondent.
Sd/- District Judge 19.8.2017”
This order came to be passed on the basis of a note made by the Registry on 19.08.2017, whereunder, Registry has stated that payment of Rs.25 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 Court is of the view that learned District Judge was in error in directing the Registry to deduct 20% out of Rs.25 lakhs as tax at source. As such, said order cannot be sustained and it is liable to be quashed.
Hence, I pass the following:
ORDER i) Writ petition is hereby allowed.
ii) Order dated 19.08.2017 passed in Crl.A.No.6/2016 by the learned Principal District Judge, Chikkballapur (Annexure-A) is hereby quashed.
iii) Registry of the Principal District and Sessions Judge, Chickballapur is directed to issue cheque for Rs.25 lakhs (Rupees Twenty Five Lakhs only) in favour of petitioner forthwith on proper identification.
iv) No opinion is expressed with regard to other aspects of the matter and it is left open.
SD/- JUDGE ca