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TMI Blog2018 (2) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate issued under Section 197 of the Act, was passed on the ground that the aspect of pending demand has not been considered in the context of Rule 28AA of the Income Tax Rules, 1961 while granting the certificate under Section 197 of the Act. This, without furnishing a copy of the reasons recorded at the time of issuing the certificate under Section 197 of the Act. This non furnishing of copy of the reasons recorded was held by us to be a flaw in the decision making process. Thus, making the impugned order unsustainable. Impugned order passed by Respondent No.2, which sets aside and/or withdraws / modifies the earlier certificate issued under Section 197 of the Act, is quashed and set aside. - Writ Petition No. 2817 of 2017 - - - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit if being filed, he undertakes to serve a copy of the same upon the Petitioner before 31 January 2018. 5 In the above view, at the request of the Revenue, we adjourn the hearing of this Petition to 2 February 2018 at 3.00 p.m. for likely final disposal. 6 The learned Counsel for both the parties state that the issue arising in this Petition is identical to one arising in Writ Petition No. 2701 of 2017 (M/s Tata Teleservices (Maharashtra) Limited V/s. DCIT (TDS)). In fact, we have after hearing the parties, today allowed Writ Petition No. 2701 of 2017 (M/s Tata Teleservices (Maharashtra) Limited). 7 Prima facie we also note that when the original certificate dated 18 May 2017 was issued and the date when the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand of ₹ 41.86 Crores was not considered at the time of granting the certificate. The impugned order dated 23rd October, 2017 has been issued with the concurrence of the Commissioner of Income Tax (TDS). Thus, in the above facts, there is no efficacious alternative remedy available as held by us on similar facts in our order dated 16/25th January, 2018 in M/s. Tata Teleservices (Maharashtra) Limited (supra). 4 Further, we find that in this case, as in Tata Teleservices (Maharashtra) Limited (supra), an order canceling a certificate issued under Section 197 of the Act, was passed on the ground that the aspect of pending demand has not been considered in the context of Rule 28AA of the Income Tax Rules, 1961 while granting the certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 4 May 2017 on the ground that it was issued by mistake i.e. not having considered Rule 28AA (2) of the Rules in the context of the pending demands. The Revenue has filed an affidavit in reply dated 11 January 2018 of Respondent No. 1Mr. M. Ashok Babu, Joint Commissioner of Income Tax, opposing the admission and also relies upon it at the final hearing. We find that the order preceding the grant of the certificate has not been annexed to the affidavit filed by the Revenue. This Court in Larsen Toubro Ltd., (supra) has held that an issue of certificate must necessarily be preceded by an order under Section 197(1) of the Act. In fact the issue of certificate is the result of an order holding that the applicant is entitled to a certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issues including Rule 28AA (2) of the Rules were considered in the order passed leading to the issuing of Certificated dated 4 May 2017. We specifically invited the attention of the Revenue to the specific observation found in para 7 of the decision of this Court in Larsen Toubro Ltd. (supra) and also to the decision of the Apex Court in Liberty Oil Mills Vs. U.O.I. 1984(3) SCC 465 which while construing the words without assigning any reasons held that it does not do away with the requirement of reasons existing for the decision, it only does away with communicating the same. In fact in this case the Section does not do away with requirement of issuing a reasoned order while issuing a Certificate under Section 197 of the Act. 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to seek a copy of the reasons recorded while issuing a certificate dated 4 May 2017. Moreover, this becomes all the more important as we have found on examination of facts that there is no change in facts as existing on 4 May 2017 and as existing when the impugned order dated 23 October 2017 was passed. Thus, in the present facts, according to us, there is a flaw in the decision making process which vitiates the impugned order dated 23 October 2017. 6 The Revenue does not dispute that on the above issue, the facts are similar here and the dispute stands concluded against the Revenue by the above decision in the case of Tata Teleservices (Maharashtra) Limited (supra). 7 In the above view, the impugned order dated 23rd October, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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