2014 (10) TMI 541 - HC - Income Tax

Stay application - Validity of order u/s 201(1) r..w section 201(1A) Non-compliance of section 194J and 194H - Assessee is a licensed telecom operator and provides cellular services to 22 telecom circles across India - Whether the payment of roaming charges, commission and discounts to dealers are subject to TDS as fee for technical services u/s 194J and commission and discounts to dealers u/s 194H Held that - The matters are pending before the adjudicating authority or the appellate authority, the respondents file a comprehensive affidavit - The affidavit travels beyond what is required to be stated and dealt with - Annexures S & T are copies of the memo of appeal and the stay application which the assessee has preferred before the CIT(A) and against the assessment order - a plea of jurisdiction would be a mixed question of law and fact -The writ petition cannot be a remedy, firstly, because an appeal has already been preferred and secondly, because, there are disputes which could be termed as factual in nature the stay is granted till the disposal of the hearing Decided in favour of assessee.

Summary

Issues Involved:
1. Jurisdiction under Section 201(1) read with Section 201(1A) of the Income Tax Act, 1961.
2. Non-deduction of Tax at Source (TDS) on discounts and roaming charges.
3. Maintainability of the writ petition in light of alternate remedies.
4. Fair hearing and independent adjudication by the appellate authority.

Detailed Analysis:

1. Jurisdiction under Section 201(1) read with Section 201(1A) of the Income Tax Act, 1961:
The petitioner challenged the jurisdiction of the second respondent, asserting that the officer had jurisdiction only over the Mumbai telecom circle (TAN No. MUM107565F) and not over all 22 telecom circles across India. The petitioner argued that the assessment demanding tax deducted at source (TDS) for all telecom circles was beyond the territorial limits and thus illegal and erroneous. The petitioner emphasized that each telecom circle had its own designated jurisdictional officer, and the second respondent could only demand details specific to the Mumbai circle.

2. Non-deduction of Tax at Source (TDS) on discounts and roaming charges:
The show cause notice issued to the petitioner alleged non-compliance with sections 194J and 194H of the Income Tax Act regarding TDS on roaming charges and discounts offered to prepaid distributors. The petitioner contended that the details of such charges pertained to the company as a whole and not to any specific circle. Despite providing detailed information for the Mumbai circle, the petitioner argued that the second respondent's demand for nationwide details was impermissible and led to an erroneous assessment order dated 28th March 2014.

3. Maintainability of the writ petition in light of alternate remedies:
The respondents raised a preliminary objection to the maintainability of the writ petition, citing the availability of alternate and equally efficacious remedies under the Income Tax Act, including appeals to the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal. The court acknowledged this objection but noted the petitioner's apprehension regarding a fair hearing due to the department's stance and the comprehensive affidavit filed by the respondents, which went beyond what was necessary.

4. Fair hearing and independent adjudication by the appellate authority:
The court emphasized the need for an independent adjudication by the appellate authority, free from the influence of the assessing officer's findings or the affidavit filed in reply to the writ petition. The court directed the Commissioner of Income Tax (Appeals) to consider all objections, including jurisdictional issues, and pass a reasoned order. The court also assured that no coercive measures would be taken to recover the demanded amounts until the petitioner had an opportunity to press its stay application and the appeal was decided.

Conclusion:
The court disposed of the writ petition, directing the appellate authority to decide the appeal and stay application in accordance with the law, ensuring an independent and fair hearing. The court clarified that the appellate authority should not be influenced by the assessing officer's findings or the affidavit filed in reply to the writ petition. Additionally, the court directed that no coercive measures be taken against the petitioner until the appeal was heard and decided, and for a further two weeks thereafter if the order was adverse to the petitioner.