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TMI Blog2020 (1) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... ope of the Respondents to consider the assessed, returned or estimated income for a period in excess of the last four previous years. Rule 28 (2) is merely an empowering rule, which empowers the named authorities looking after the systems to lay down procedure, format and standards for insuring secured capture and transmission of data, and uploading of documents and for evolving and implementing appropriate security, archival and retrieval policies in relation to furnishing of form No. 13. Respondents have not taken into consideration the tax already paid by the Petitioner in the previous years and the computation tendered in Court proceeds on the assumption that no payment has been made by the Petitioner. On that premise, tax as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax at the rate of 10 % on the payments made to the Petitioner by THDC India Limited from 05.07.2019 to 31.03.2020. The Petitioner also seeks a direction to Respondent No. 1 to issue order/certificates under Section 197 of the Act at a nil rate in respect of THDC India Limited in pursuance of Petitioner s application filed on 23.04.2019. Alternatively, the Petitioner seeks a direction to the Respondent No. 1 to issue order/certificates under Section 197 of the Act at the lower rate of 1.5% to THDC India Limited, in pursuance of Petitioner s application filed on 23.04.2019. 2. In the immediately preceding year, the Petitioner was issued withholding tax certificate at rate of 1.5 % of payments made by THDC India Limited in pursuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm No.13. 3. We find that in the counter affidavit as filed, neither of these pleas have been taken. The reasons for issuing withholding tax certificates at the rate of 10 % on payments to the Petitioner by THDC India Limited cannot be improved upon, in view of the judgment of the Supreme Court in Mohinder Singh Gill v. Chief Election Commr., AIR 1978 SC 851 . Further in the counter affidavit, the Respondents have tried to justify the granting of certificate for deduction of tax at source at the rate of 10 % by contending that the total turnover of the Petitioner for the assessment years 2013-14 to 2018-19 from its business operations in India is ₹ 601.91 crores. The AO has assessed 10% of the revenue/sales as profit, and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has, on the contrary, maintained that the Respondents have completely glossed over the fact that the THDC contract was a purely supply contract, which has been explained in the application filed by the Petitioner under Section 197 of the Act. We find that the Respondents have not examined the aforesaid fact in the correct perspective and have applied a profit attribution rate of 35 % straightaway and issued the certificate withholding tax at the rate of 10 %. 5. Pertinently, the Respondents have sought to justify withholding tax at the rate of 10 % for the current year in respect of payments received from THDC India Limited by taking into account the assumed tax and interest liability under Section 234B and 234C by considering the busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tems to lay down procedure, format and standards for insuring secured capture and transmission of data, and uploading of documents and for evolving and implementing appropriate security, archival and retrieval policies in relation to furnishing of form No. 13. 7. We also find that the Respondents have not taken into consideration the tax already paid by the Petitioner in the previous years and the computation tendered in Court proceeds on the assumption that no payment has been made by the Petitioner. On that premise, tax as well as interest under Section 234B and 234C have been added, which cannot be the case. 8. In the above circumstances, following the earlier orders of this court in Bently Nevada LLC v. Income Tax Officer, Ward ..... X X X X Extracts X X X X X X X X Extracts X X X X
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