Bombay High Court
Tlg India Pvrivate Limited vs Joint Commissioner Of Income-Tax (Osd) ... on 18 September, 2018
Author: B.P. Colabawalla
Bench: S.C. Dharmadhikari, B.P. Colabawalla
(904)-wpl-2764-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.2764 OF 2018
TLG India Private Limited ... Petitioner
Vs
Joint Commissioner of Income-Tax (OSD)
(TDS)-Range 2(3) and Ors. ... Respondents
Mr.J.D.Mistri, Senior Advocate a/w Mr.R.M.Poojary i/b Mint &
Confreres for the Petitioner.
Mr.Suresh Kumar for the Respondents.
CORAM : S.C. DHARMADHIKARI &
B.P. COLABAWALLA, JJ.
TUESDAY, 18TH SEPTEMBER, 2018 P.C. :
1 Leave to amend to correct the prayer clause. Amendment be carried out forthwith. Amended memo be served on Mr.Suresh Kumar also.
2 When this matter was argued at some length before us, we have noted the contentions of Mr.Mistri, learned senior counsel appearing for the petitioner.
M.M.Salgaonkar Page 1 of 4 ::: Uploaded on - 19/09/2018 ::: Downloaded on - 20/09/2018 01:27:30 :::
(904)-wpl-2764-18.doc 3 He would submit that the grievance of the petitioner is that while exercising the discretionary power in terms of Section197 of the Income Tax Act 1961 read with Rule 28-AA of the Income Tax Rules, it is the Assessing Officer who has to be satisfied that the tax is to be deducted at 'Nil' or 'Zero rate' or 'Reduced rate' and that satisfaction of the Assessing Officer must be reflected from his order. It is the order which must contain the reasons and if they are challenged or that is an issue, then, the Assessing Officer must produce the record to establish and prove that it is he, who applied his mind and arrived at the necessary satisfaction. Secondly, Mr.Mistri would urge that the time prescribed for disposal of the applications in terms of Section197 sub- section (1) of the Income Tax Act 1967 is an important factor. The applications cannot be kept pending and that would not be in the interest of the Revenue either. Finally, Mr.Mistri would urge that it is the satisfaction of the Assessing Officer, which cannot be controlled or interfered with even by his superior. At best, the superior can give some instructions or timely guidance, but in an individual case, the satisfaction ought to be that of the Assessing Officer and the Assessing Officer cannot be directed to pass a particular order. M.M.Salgaonkar Page 2 of 4 ::: Uploaded on - 19/09/2018 ::: Downloaded on - 20/09/2018 01:27:30 :::
(904)-wpl-2764-18.doc 4 The apprehension of the petitioner is that there was an exercise of a discretionary power in terms of sub-section (1) of Section 197 and the deduction of income tax at the lower rate was justified earlier. Now, the rate has been fluctuating and for this year, the deduction is at the rate of 50% of the prescribed rate. This has not come about on an independent satisfaction of the Assessing Officer, but because of uncalled interference by his superior. For that reason, he would submit that we must direct the production of the original record. 5 Mr.Suresh Kumar appearing for the Revenue tendered the affidavit in reply on behalf of the respondents. That is affirmed by the Deputy Commissioner of Income Tax (TDS) Range-2(3), Mumbai. He says that he is working in the office of the Commissioner of Income Tax (TDS) 2. Mr.Suresh Kumar relies upon para 3(c) of this affidavit to urge that the Assessing Officer has recorded his satisfaction in terms of the legal provision. That is indeed to be found in the official record or file.
6 If this is the position and the affidavit only reiterates or affirms what is stated or held by the Assessing Officer in his order, then, M.M.Salgaonkar Page 3 of 4 ::: Uploaded on - 19/09/2018 ::: Downloaded on - 20/09/2018 01:27:31 ::: (904)-wpl-2764-18.doc let that original record be produced for our perusal on the next date. We post this matter on 25th September 2018. The matter shall be listed on the 'Supplementary Board'.
7 In the event, we do not find the record asserted by Mr. Suresh Kumar, then, we will dispose of the Writ Petition in accordance with law and while doing so, we would definitely make observations with regard to the conduct of the proceedings by the Assessing Officer.
B.P. COLABAWALLA, J. S.C. DHARMADHIKARI, J. M.M.Salgaonkar Page 4 of 4 ::: Uploaded on - 19/09/2018 ::: Downloaded on - 20/09/2018 01:27:31 :::