9911796707
TMI Blog2012 (9) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... t of reasons for rejecting an application filed by an assessee under section 197(1) read with Rule 28AA of the Rules. The Assessing Officer cannot be held justified to plead that though the assessee fulfills the requisite conditions stipulated under Rule 28AA or the concerned rule, but shall not grant the certificate in exercise of his discretion - direction to the Assessing officer to re-decide the application - in favour of assessee for statistical purposes. - CWP No. 10258 of 2012 (O&M) - - - Dated:- 14-8-2012 - AJAY KUMAR MITTAL and GURMEET SINGH SANDHAWALIA, JJ. ORDER Ajay Kumar Mittal, J. In this petition filed under Articles 226/227 of the Constitution of India, the petitioner - a Private Limited Company has sought i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs during the financial year 2012-13, Annexure P.7. A show cause notice dated April 25, 2012, Annexure P.8 was issued to the petitioner. The petitioner filed its reply to the notice, Annexure P.9. On May 21, 2012, the application under section 197 of the Act filed by the petitioner was rejected primarily on the ground of pendency of proceedings under sections 276B and 271C of the Act. Hence this petition. 3. Notice of the petition was issued to the respondent. In the written statement filed on behalf of the respondent, the action has been sought to be justified on the ground that the penalty proceedings under section 271C and prosecution proceedings under section 276B of the Act are pending against the petitioner for not complying with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings under Sections 276B and 271C of the Act were pending; ( b ) The petitioner had the remedy of revision under section 264 of the Act in view of judgment of the Delhi High Court in Sis Live v. ITO [2011] 333 ITR13. On the aforesaid premises, it was submitted that the writ petition was liable to be dismissed. 6. We have heard learned counsel for the parties and perused the record. 7. It would be expedient to reproduce Section 197 of the Act which reads thus:- "197(1) Subject to rules made under sub-section (2A), where, in the case of any income of any person or sum payable to any person, income-tax is required to be deducted at the time of credit or, as the case may be, at the time of payment at the rates in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The effect of issuance of such certificate would be that the person responsible for paying the income shall or shall not deduct tax in terms of the certificate so issued. Under Sub-section (2A), enabling powers have been conferred on the Board to make rules for prescribing procedure in relation to the issue of certificates by the Assessing officer for no deduction of tax at source or deduction at a lower rate. It empowers the Board to make rules specifying (i) the cases in which and the circumstances under which, an application may be made for the grant of a certificate under sub-section (1); and (ii) the conditions subject to which such certificate may be granted and providing for all other matters connected therewith. 9. Rules 28(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Income-tax Act, 1961 and Wealth-tax Act, 1957; ( iv ) advance tax payment for the assessment year relevant to the previous year till the date of making application under sub-rule (1) of rule 28; ( v ) tax deducted at source for the assessment year relevant to the previous year till the date of making application under sub-rule (1) of rule 28; and ( vi ) tax collected at source for the assessment year relevant to the previous year till the date of making application under sub-rule (1) of rule 28. (3) The certificate shall be valid for such period of the previous year as may be specified in the certificate, unless it is cancelled by the Assessing Officer at any time before the expiry of the specified period. (4) The certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules. The Assessing Officer cannot be held justified to plead that though the assessee fulfills the requisite conditions stipulated under Rule 28AA or the concerned rule, but shall not grant the certificate in exercise of his discretion. The power vested in the Assessing Officer is to be exercised in a judicious manner. He is required to furnish reasons while deciding the application filed by the assessee. The perusal of the application filed by the assessee clearly demonstrates that the Assessing officer had rejected the application on twin grounds:- ( i ) the assessee had violated the provisions of TDS; ( ii ) proceedings under Sections 276B and 271C of the Act were pending. None of these grounds validly form part of reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
