2023 (10) TMI 38 - HC - Income Tax

Lower tax deduction certificate u/s 197 read with Rules 28AA - Application for Lower TDS rejected - Non filing of ITR for last 4 years - assessee having challenged the order passed by the respondent by rejecting its prayer to issue Lower Tax Deduction Certificate u/a 226 of the Constitution of India and the Revenue having taken the objection as to maintainability of the writ petition - HELD THAT - As per sub Rule 2 of Rule 28AA, the existing and estimated liability of such person shall be determined by the AO after taking into consideration the tax payable of estimated income of the previous or relevant of the assessment year; the tax payable on the assessed or returned or estimated income, as the case may be, of last four previous years. In the present case, the respondent had rejected the prayer of the petitioner to issue Lower Tax Deduction certificate on the ground that the former had failed to file returns for the last 04 previous years to show the tax payable on the assessed or returned or estimated income for these years and in the absence of audited financial statements, thus, the turnover ratio of these years could not be ascertained to arrive at the rate of lower deduction. The claim of the petitioner is that since it had been newly incorporated on 29.06.2022, it had started its business from that date only, therefore, it was obviously not in a position to file returns for the last 04 previous years. He has referred to the judgment of Manpowergroup Services India (P) Ltd 2020 (12) TMI 934 - DELHI HIGH COURT to argue that since the order passed by the respondent could not be challenged by way of revision, therefore, this writ petition has been filed. In ManPowerGroup s case (supra), the assessee had filed an application for issuance of lower tax deduction certification under Section 197 of Act, 1961, which was rejected. It was held by Delhi High Court that since the impugned order was passed after seeking approval from the Commissioner, therefore, it could be challenged by way of revision before the Commissioner, therefore the writ petition was held to be maintainable despite the fact that the efficacious alternative remedy available to the petitioner to challenge the impugned order had not been availed. In the instant case, the position can be said to be different. The alternative efficacious remedy by way of filing an appeal challenging the impugned order was very much available with the petitioner but it has not chosen to avail the same. In Greatship India Ltd s case 2022 (9) TMI 896 - SUPREME COURT has held that where the statutory remedy of appeal was available to the petitioner against the assessment order passed by the Assessing Officer, the High Court ought to have relegated the assessee to avail the alternative remedy, instead of exercising its jurisdiction under constitutional provisions. In Chhabil Dass Aggarwal s 2013 (8) TMI 458 - SUPREME COURT had made similar observations. In the present case, the petitioner has not been able to plead or make out any case to show that there was any violation of principle of natural justice on the part of the respondent while passing the impugned order or there was lack of jurisdiction or procedure required for decision had not been adopted. As such, in our considered opinion, the petition cannot be entertained being not maintainable, as it has been filed by the petitioner without exhausting the alternative efficacious remedy of law, as available to it. WP dismissed.

Summary

Issues Involved:
1. Maintainability of the writ petition.
2. Rejection of the application for issuance of Lower Tax Deduction Certificate under Section 197 of the Income Tax Act, 1961.

Summary:

1. Maintainability of the Writ Petition:
The respondent raised preliminary objections regarding the maintainability of the writ petition, arguing that the petitioner had an alternative remedy available through a statutory appeal. The court acknowledged that Article 226 of the Constitution confers wide powers to issue writs, but it is discretionary and generally not exercised when an effective alternative remedy exists. The court cited six exceptions where the High Court can exercise such power, including violations of fundamental rights, principles of natural justice, lack of jurisdiction, or when the vires of legislation are challenged.

2. Rejection of the Application for Lower Tax Deduction Certificate:
The petitioner challenged the order rejecting its application for a lower tax deduction certificate under Section 197 of the Income Tax Act, 1961. The petitioner argued that the rejection was based on the absence of financial statements from previous years, which was unreasonable since the company was newly incorporated on 29.06.2022. The petitioner contended that the respondent should have determined the tax rate using parameters under Rule 28AA(2) of the Income Tax Rules, 1962, or any independent calculation method. The respondent argued that the application was rejected due to non-fulfillment of parameters required under Rule 28AA.

The court noted that Rule 28AA allows the Assessing Officer to issue a certificate if satisfied that the estimated tax liability justifies such deduction. The rejection was based on the petitioner's failure to provide returns for the last four years, making it impossible to determine the tax-to-turnover ratio. The petitioner cited judgments from the Delhi High Court and Bombay High Court to support its case, but the court distinguished these cases, noting that in the present case, the petitioner had not exhausted the alternative remedy of filing an appeal.

Conclusion:
The court concluded that the petitioner had not demonstrated any violation of natural justice, lack of jurisdiction, or procedural errors by the respondent. Therefore, the writ petition was not maintainable as the petitioner had not exhausted the alternative remedy of filing an appeal. The writ petition was dismissed, and the petitioner was advised to approach the appropriate authority for alternative remedies in accordance with the law.