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TMI Blog2018 (3) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... of the reasons recorded was held by us to be a flaw in the decision making process. Thus, making the impugned order unsustainable. In the above view, the impugned order dated 11 October 2017 passed by the Respondent No. 1, which cancels the Certificate dated 18 May 2017 is quashed and set aside - Writ Petition No. 289 of 2018 - - - Dated:- 20-2-2018 - M.S. SANKLECHA RIYAZ I. CHAGLA, JJ. Mr. Jehangir Mistry, Senior Advocate, Mr. Fereshte Sethna, Ms. Mrunal Parekh, Mr. Adhiraj Malhotra, Ms. Divya Hirwat, for the Petitioner. Mr. Suresh Kumar, for the Respondents. ORDER : 1. At the request of the parties, the Petition is disposed of finally, at the stage of admission. 2. This Petition under Article 226 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry authority who has directed, the Respondent No. 1 to review the Certificate dated 18 May 2017 already granted. Besides on identical fact situation relating to Tata Sky Limited (supra) M/s. Tata Teleservices (Maharashtra) Limited (supra), the order passed therein were with the consonance of the Commissioner of Income Tax. Therefore, in the present facts, there is no efficacious alternative remedy available to the Petitioner. Thus, this also is a case where we exercise our extraordinary writ jurisdiction in the absence of an efficacious alternative remedy. 5. 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 groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order is without jurisdiction. 20 In the present facts, we note that impugned order dated 23 October 2017 cancels the certificate dated 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of the order leading to the grant of the certificate being given to the Petitioner, leads to an adverse inference against the Revenue i.e. all 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the applicability of Rule 28 AA of the Rules in the context of the petitioner s facts. Therefore, there was no opportunity/occasion for the petitioner 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. 7. The Revenue does not dispute that on the above issue, the facts are similar here and the dispute stands concluded against the Revenue b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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