Bombay High Court
Tata Sky Limited vs Union Of India And 2 Ors on 24 October, 2018
Author: B.P. Colabawalla
Bench: S.C. Dharmadhikari, B.P. Colabawalla
(909)OSWP2759.18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2759 OF 2018
Tata Sky Limited ... Petitioner
Vs
1 Union of India & Ors. ... Respondents
Mr. J.D. Mistri, senior counsel with Mr. Harsh M. Kapadia for the
Petitioner.
Mr. Suresh Kumar for the Respondent Nos.1 to 3.
CORAM : S.C. DHARMADHIKARI &
B.P. COLABAWALLA, JJ.
WEDNESDAY, 24TH OCTOBER, 2018 P.C. :
1 By this writ petition under Article 226 of the Constitution of India, the petitioners pray for the following reliefs :
(a) That this Hon'ble Court may be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 pf the Constitution of India calling for the records pertaining to the Petitioner case and after going into the validity and legality thereof to quash and set aside impugned order dated 25 th June 2018 ("Exhibit J") issued by the Respondent No.2.SRP 1/5 ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 02:01:16 :::
(909)OSWP2759.18.doc
(b) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the Respondent Nos.2 and 3 to forthwith withdraw the impugned order dated 25th June 2018 ("Exhibit J") and grant a certificate under section 197 of the Act authorizing the deductors who are specified in the application dated 2 nd April 2018 ("Exhibit A"), to pay the amounts to the Petitioner without deduction of any tax at source.
(c) That pending the hearing and final disposal of the Petition, the Respondents themselves, their subordinates, servants and agents be restrained by an interim order and injunction of this Hon'ble Court from taking any steps or proceedings in pursuance of and/or in furtherance of and/or in implementation of impugned order dated 25th June 2018 ("Exhibit J") issued by Respondent No.2 and also direct the Respondents to immediately grant a certificate under section 197 of the Act authorizing the deductors who are specified in the application dated 2 nd April 2018 ("Exhibit A"), to pay the amounts to the Petitioner without deduction of any tax at source." 2 This petition was extensively argued after an affidavit- in-reply was filed by the respondent. After conclusion of the arguments, we posted it for dictation of judgment in open court. SRP 2/5 ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 02:01:16 :::
(909)OSWP2759.18.doc When we were about to commence dictation of the judgment, Mr. Suresh Kumar appearing on behalf of the respondents, on instructions, states that the petitioner's challenge would not survive as the impugned order dated 25 th June, 2018, copy of which is at Exhibit-J to the petition, stands withdrawn. 3 The petitioner's request to grant a certificate under section 197 of the Income Tax Act, 1961, would be examined and considered afresh. The authorities will pass a fresh order strictly in accordance with law and also by taking into consideration the order dated 12th October, 2018 of the Income Tax Appellate Tribunal, Bench at Mumbai, in the Income Tax Appeals for assessment years 2009-10 to 2012-13, copy of which was earlier handed over and taken on record of this case. 4 In view of the statements of Mr. Suresh Kumar, which are accepted as undertakings to this Court, nothing survives in the writ petition.
5 Mr. Mistri has rightly relied upon an order passed by this Court to the similar effect in Writ Petition No. 2764 of 2018 SRP 3/5 ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 02:01:16 ::: (909)OSWP2759.18.doc (TLG India Private Limited vs Joint Commissioner of Income Tax (OSD) (TDS) Range 2(3)) decided on 8th October, 2018. 6 When similar statements were made by Mr. Suresh Kumar in that matter, we issued the clarifications and to the following effect :
"While we allow withdrawal of these certificates and impugned in this Writ Petition with liberty to issue fresh certificates in accordance with law, we clarify that no functionary other than the officer referred to in the relevant statutory provision, namely Section 197 and the Rule 28AA of the Income Tax Rules, 1962 would be permitted to take over the jurisdiction or interfere in the exercise of the discretionary power envisaged by this statutory provision."
7 We would impress upon the authorities, while not expressing any opinion on the rival contentions, that in the field there is a judgment of this Court and rendered by a Division Bench. That is rendered in the case of M/s. Tata Teleservices (Maharashtra) Limited vs. Deputy Co. in Writ Petition No.2701 of 2017, decided on 16th and 25th January, 2018. In paragraph 29 of this judgment, the Division Bench expressed itself in the following words:
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(909)OSWP2759.18.doc "29. So far as ground (b) above viz. Outstanding tax demand of Rs. 6.90 Crores is payable to the revenue by the petitioner. Therefore, the certificate dated 4 May 2017 cannot be sustained, resulting in its cancellation. We note that neither Section 197 of the Act nor Rule 28AA of the Rules provide that no certificate of nil/lower rate of withholding tax can be granted if any demand, howsoever minuscule, is outstanding. In fact Rule 28 AA(2) of the Rules requires the authority to determine the existing/estimated liability taking into consideration various aspects including the estimated tax payable for the subject assessment year and also the existing liability. The existing and estimated liability would also require taking into account the demands likely to be upheld by the appellate authorities."
8 We would expect the authorities, therefore, to be aware of these observations and equally the wording of both, section 197 and Rule 28AA of the Income Tax Rules, 1962. We say nothing further.
9 The writ petition, accordingly, stands disposed of. B.P. COLABAWALLA, J. S.C. DHARMADHIKARI, J. SRP 5/5 ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 02:01:16 :::