SC explains when power to transfer petitions U/s 21A Hindu Marriage Act can be invoked - The Daily Guardian
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SC explains when power to transfer petitions U/s 21A Hindu Marriage Act can be invoked

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In a latest, landmark and laudable judgment titled Shruti Kaushal Bisht vs. Kaushal R Bisht [Transfer Petition (Civil) No. 1264 of 2019] delivered on November 6, 2020, Justice V Ramasubramanian of the Apex Court held that a power to transfer the petition under Section 21A of the Hindu Marriage Act can be invoked only when the subsequent petition is either a petition seeking judicial separation under Section 10 or a petition seeking divorce under Section 13. Justice Ramasubramanian also added that the Section 21A of the Hindu Marriage Act does not divest the Supreme Court of the power available under Section 25(1) of the Code of Civil Procedure. Very rightly so!

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is put forth that, “While the first transfer petition is by the wife seeking transfer of the divorce petition filed by the husband in the Family Court at Pune, Maharashtra, the second transfer petition is by the husband seeking transfer of the petition for restitution of conjugal rights filed by the wife before the Family Court, Saket, New Delhi.”

To say the least, after hearing the learned counsel on both sides as pointed out in para 2, it is then stated in para 3 that, “The parties got married on 19.11.2015 at Delhi. It appears that disputes arose between the parties and the parties started living separately from 12.01.2019.”

To put things in perspective, it is then envisaged in para 4 that, “The husband filed a petition for divorce on 07.05.2019 before the Family Court, Pune, Maharashtra. After the receipt of notice in the said petition, the wife came up with the Transfer Petition No. 1264 of 2019. The transfer petition was filed in the first week of July 2019. Thereafter, the wife, perhaps as a counter-blast, filed a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi on 15.07.2019. Upon receipt of notice in the said petition, the husband has come up with Transfer Petition No. 2168 of 2019.”

As anticipated, what is then made known in para 5 is that, “The main ground on which the wife seeks transfer of the husband’s divorce petition from Pune to New Delhi is that she has no independent source of income and that since the husband is not even paying any maintenance, she is entitled to have the divorce petition transferred to the Family Court in New Delhi, so that the petition for divorce filed by the husband could be tried together with the petition for restitution of conjugal rights filed by her.”

On the contrary, it is then pointed out in para 6 that, “The main ground on which the husband opposes the transfer petition filed by the wife, is that his own petition for divorce was prior in point of time and that therefore under Section 21-A(2)(b) of the Hindu Marriage Act, 1955, the petition filed by the wife, subsequently, is liable to be transferred to Pune. The husband has offered to bear the expenses for the travel of the wife from Delhi to Pune. The husband further states that his father is suffering from seizures and asthama and that his mother has undergone a cervical biopsy recently and that therefore it is not possible for him to leave his aged parents and travel to Delhi, for conducting the proceedings.”

Needless to say, after carefully considering the rival contentions as pointed in para 7, it is then significantly noted in para 8 straightaway that, “At the outset it should be pointed out that the claim of the petitioner that she is unemployed and that she has no independent source of income and that she is dependent upon her parents, is not seriously disputed by the husband. On the contrary the husband has attempted to take advantage of the averment of the wife about her being unemployed, by claiming in ground no. (F) that no inconvenience will be caused to the wife, who is unemployed, if she is made to attend the proceedings in Pune. The claim of the wife that she is not receiving any maintenance, is also not disputed. Therefore, considering the fact that the marriage was also solemnized in Delhi, the petition for transfer filed by the wife deserves to be allowed and the one filed by the husband deserves to be dismissed.”

To be sure, it is then stated in para 9 that, “The learned counsel appearing for the husband places heavy reliance upon Section 21-A(2)(b) of the Hindu Marriage Act, 1955 in support of his contention that a petition filed later in point of time should be transferred to the Court in which a petition under the Act had been filed prior in point of time. But the said contention is misconceived, as can be seen from the plain language of Section 21A in entirety, which reads as follows:

POWER TO TRANSFER PETITIONS IN CERTAIN CASES WHERE…

(a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13; and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State,

The petitions shall be dealt with as specified in subsection (2).

(2) In a case where subsection (1) applies, –

(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;

(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of subsection (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.””

Be it noted, it is then mentioned in para 11 that, “In the case on hand, what was filed by the husband, first in point of time, was a petition for divorce and hence his case may fit into clause (a) of Sub-section (1) of Section 21A. But unfortunately for him, what was filed by the wife later in point of time was only a petition under Section 9 and not a petition either under Section 10 or under Section 13 of the Hindu Marriage Act. Thus, the wife’s petition, though subsequent in point of time, does not fall under Clause (b) of Subsection (1) of Section 21A. As a consequence, Subsection (1) of Section 21A has no application to the case on hand, as the pre-conditions stipulated therein are not satisfied.”

Most significantly, it is then observed in para 12 that, “In any case Section 21A of the Hindu Marriage Act does not divest this Court of the power available under Section 25(1) of the Code of Civil Procedure Code, 1908. In Guda Vijalakshmi vs. Guda Ramchandra Sekhara Sastry AIR 1981 SC 1143, this Court rejected the contention that the substantive provision contained in Section 25 CPC is excluded by reason of Section 21 of the Hindu Marriage Act, 1955. The words “subject to the other provisions contained in this Act” appearing in Section 21 of the Hindu Marriage Act, 1955 were construed by this Court to indicate only those provisions which are inconsistent with any of the provisions of the Act. The only test prescribed in Section 25(1) of the Code of Civil Procedure for the exercise of the power of transfer by this Court is “expediency for the ends of justice”. Therefore, the argument of the learned counsel for the husband centering around Section 21A(2)(b) cannot be countenanced. The offer made by the husband to meet the travel expenses for the wife, does not appeal to me, as she may have to travel a distance of more than 1000 km every time. When the contention that the wife is unemployed and her claim that no maintenance is paid, are not seriously disputed, the offer now made by the husband does not convince me.”

Finally, it is then held in the last para 13 that, “In view of the above, the Transfer Petition No. 1264 of 2019 filed by the wife is allowed and, accordingly, the divorce petition P.A. No. 645 of 2019 titled as “Kaushal R Bisht vs. Shruti Kaushal Bisht” is hereby transferred from the Family Court Pune, Maharashtra to the Court of Principal Judge, Family Court, Saket, New Delhi and it shall be tried together with the wife’s petition under Section 9 of the Act. Let the records of the case be transferred to the concerned court without delay. The transfer petition No. 2168 of 2019 filed by the husband is dismissed.”

In sum, the Apex Court in this leading case thus clarifies as to when can transfer petitions U/s 21A of the Hindu Marriage Act be invoked. We have already dwelt considerably on it. What has thus been laid down in this case must always be adhered to in letter and spirit. There can certainly be no denying it!

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The Kolkata Bench Income Tax Appellate Tribunal (ITAT) in the case M/s Forum Projects Pvt. Ltd. Versus DCIT(IT) observed and has ordered that no TDS on payment of fees for technical services (FTS) to non-residents not having a Permanent Establishment (PE) in India.
The two-member bench comprising of Vice President, Rajpal Yadav and the Accountant Member, Rajesh Kumar has observed that the payment made to non-resident recipients not having any permanent establishment in India and also that the services being provided are not in the nature of royalty and fee for the technical services.
The assessee/appellant is a company registered and incorporated in India and engaged in the business of construction and development of projects during the year. Thus, the assessee was engaged in a construction and development project called Atmosphere in Kolkata during the instant year. An agreement was entered by the assessee company with M/s Web Structures Pte. Ltd., to have a registered office at 146, Robinson Road, Singapore.
However, M/s Web Structures Pte. Ltd. is a structural engineering consultancy firm and the services provided to the assessee company were in the nature of concept and schematic design, detailed design, contract documentation, tender and recommendation, design development and the construction etc.
During the year, a sum of Rs. 1,552,56,351 was paid by the assessee to the consultancy company as a consultancy fee for providing the above services. However, the said company is the non-resident company and incorporated in Singapore and did not have any permanent establishment in India, according to the assessee. Since the resident does not have any permanent establishment in India and is a non-resident, the provisions of Section 195(1) of the Act are not applicable.
It was observed that according to AO, the assessee was liable to deduct tax at source from the payment made to the company. Further, the payment of the foreign company is covered under Article 12(3)(a) of the Treaty and constitutes a payment towards royalty. As per AO, the services rendered by the M/s Web Structures Pte. Ltd. to the assessee other than the supply of drawings/ design are subsidiary and ancillary to the application and enjoyment of rights, property, or information for which payment described in Article 12(3)(a) of the Treaty is made to the foreign company, and thus a portion of the payment relating to the supply of managerial consultancy and technical services under the Agreement entered between both the companies falls under this category.
It was stated that the entire payment under the Treaty to M/s Web Structures Pte. Ltd. is in the nature of a payment for royalty and the fee for technical services. It was observed by AO that since there was no information available about M/s Web Structures Pte. Ltd. being the beneficial owner of the payment and received by it under Article 12(2), subsequently, the domestic tax rates were provided and the tax payable was computed.
The Order of AO was confirmed by CIT(A) by holding that the payment made to the foreign company by the assessee falls within the meaning of Article 12 of the DTAA between India and Singapore and therefore was liable for deduction of tax under section 195 of the Income Tax Act, 1961.
It was submitted by the assessee that since the assessee did not have any permanent establishment in India and was providing the service only from Singapore, the provisions under Section 195 of the Income Tax Act, 1961 provides that the same are not applicable.
Further, the department contended that the assessee has received services in lieu of royalty and fee for taxes paid to the foreign company which are covered under Article 12(4)(a) of Treaty. However, the appeal of the assessee may be dismissed.
It was ruled by the ITAT that the conditions set out in Article 12(4)(a) of the Tax Treaty are not met, and the services are not provided under technical knowledge, skill, etc. by using them independently in the future, nor has any design or drawing been provided to the assessee that can be used independently.
Accordingly, the ITAT directed the AO to delete the demand.

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