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TMI Blog2014 (10) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of assessee. - Writ Petition (L) No. 2183 of 2014 - - - Dated:- 29-9-2014 - S. C. Dharmadhikari And A. K. Menon,JJ. For the Petitioner : Mr. J. D. Mistri For the Respondent : Mr. P. C. Chhotaray ORDER P.C. 1. This writ petition under Article 226 of the Constitution of India is filed by the petitioner company seeking to quash an order which has been passed by respondent No.2 and a notice of demand dated 28th March, 2014. 2. The case of the petitioner is that the exercise purportedly carried out under section 201(1) read with section 201(1A) of the Income Tax Act, 1961 ('the I.T. Act' for short) is patently without jurisdiction, illegal, erroneous and, therefore, would not bind the petitioner. A challenge is also raised to an order dated 8th July, 2014 rejecting an application for rectification. 3. The case of the petitioner is that it is a licensed telecom operator and provides cellular services to 22 telecom circles across India. As per the provisions of section 203A of the I.T. Act read with Rule 115A of the Income Tax Rules and instructions so also clarifications issued by the tax department, each telecom circle of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was placed upon several details in that behalf. A letter at Annexure-C is relied upon and the petitioner has also provided details of the circle-wise TAN numbers. The petitioner, therefore, protests that a order was passed without taking note of all these objections, on 28th March, 2014, a copy of which is at Annexure-E. That is stated to be the impugned assessment order. In furtherance thereof, a notice of demand was issued and that is how the petitioner then made an application under section 154 of the I.T. Act seeking intervention of the second respondent for rectification of the mistakes and which are apparent on the face of record, according to the petitioner. Since no note was taken of these proceedings, a Writ Petition No.1554 of 2014 came to be filed as the second respondent till then had not dealt with the rectification application. The second respondent through his Advocate then assured this Court that the rectification application would be decided and till then no coercive measures would be taken to recover the amounts under the demand notice. Annexure-H is a copy of the order passed in the writ petition by this Court, recording the above statement, dated 30th April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, it is erroneously mentioned that complete details were not given at the time of the assessment proceedings. Mr.Mistri submits that pendency of any appeal before the jurisdictional Commissioner of Income Tax (Appeals) cannot be of any assistance once such is the sweep of the powers exercised. The alternate remedy available in law cannot be said to efficacious. More so and when the departmental authorities have made their stand clear before this Court even in affidavit in reply. Now, there is no hope of any independent adjudication at the hands of the appellate authority under the Act. For all these reasons, Mr.Mistry submits that arguable points have been made out and the writ petition be admitted. Alternatively, the orders be quashed on these grounds alone. 7. Mr.Chhotaray, learned counsel appearing on behalf of the respondents submits that a preliminary objection is raised to the maintainability of the writ petition on the ground that under the Act, there is alternate and equally efficacious remedy which is available in this case. There are appeals provided to the Commissioner of Income Tax (Appeals) who is a very high level officer. It cannot be presumed that he will not ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or rectification was made and it was also dismissed. 10. The petitioners do not dispute that they have approached the Commissioner of Income Tax (Appeals) but in their submission, they would not be given a fair, just and proper hearing and equally the mind of the respondents and the department as a whole appears to be closed. 11. We have been noticing that when such is the nature of the proceedings before us and 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. If the impugned tax demand is without jurisdiction, null, non est, void and ab initio as contended by the petitioner, then, we do not expect the respondents to file affidavits demonstrating as to how they are not so and by referring to the merits. The matter is pending before a Appellate Authority under the I.T. Act. It is urged that the writ petition is not maintainable and the petitioner must pursue the remedies under the Act as they are efficacious. 12. The least that is expected is that the department should not disclose all details as they have an importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is available but when we enquired as to whether the appellate authority would perform its duty in law, he assured us that the appellate authority will take into consideration all objections and pleas as are raised by the petitioner / appellant before it. 16. We clarify accordingly. We accept the assurance of Mr. Chhotaray and dispose of this writ petition by directing that the appellate authority should decide the appeal in accordance with law and after taking into consideration all the points and objections, including to the Department / Assessing Officer's jurisdiction. While passing its order, the Appellate Authority shall not influence itself in any manner by the findings of the assessing officer or the contents in the affidavit of Mr.Sanjay Seelay, Income Tax Officer (OSD) (TDS)-2, Mumbai filed in reply to this writ petition. The respondents before us are not just the Income Tax Officer who has passed the Assessment order under challenge but also his superior, the Commissioner of Income Tax (TDS). It is under these circumstances that there is some basis for the apprehension of Mr.Mistri and voiced before us. To take care of the same, we have clarified as above and we di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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