9911796707
TMI Blog2024 (2) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue is under a statutory obligation to act in accordance with the mandate of Rule 28-AA. Even otherwise, this is trite that if a statute prescribes a thing to be done in a particular manner, it has to be done in the same manner and other methods are forbidden. [See : Baru Ram v. Prasanni [ 1958 (9) TMI 85 - SUPREME COURT] , Dhanajaya Reddy v. State of Karnataka [ 2001 (3) TMI 1020 - SUPREME COURT] and judgment of this Court [ 2011 (2) TMI 1628 - MADHYA PRADESH HIGH COURT] Satyanjay Tripathi v. Banarsi Devi]. A plain reading of Rule 28-AA makes it clear that the 'satisfaction' needs to be recorded/determined by A.O. after taking into consideration the four factors mentioned in sub-rule (2) of Rule 28-AA. Thus, it is not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents : Siddharth Sharma, Advocate ORDER The petitioner preferred an application under Section 197 of the Income Tax Act, 1961 for issuance of a Lower Deduction of Tax Certificate. During the course of proceeding, the respondents passed orders Annexure P-5 and P-7, which are subject matter of challenge in this petition. 2. The bone of contention of learned counsel for the petitioner is that the petitioner intended to submit an online document dated 1st April, 2023 (Page-35). Said document was not loaded because message was too large. Faced with this, the petitioner preferred a communication on April 3, 2023 at 12 PM (Page-36) in the Traces Portal. It is submitted that while passing the impugned order, (Annexure P-5), it is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the written submissions, it is the satisfaction of the Assessing Officer (A.O.) whether said certificate is to be issued or not. In order to arrive at a satisfaction, one such important factor is veracity of existing and estimated tax liability of an applicant which is net profit ratio. Thus, net profit ratio was rightly taken into account while passing the impugned order Annexure P-7 and, therefore, no fault can be found in the impugned order Annexure P-7. 5. So far document page 35 and 36 aforesaid are concerned, it is submitted that these documents were never received/served through any mode to the department. Thus, the petitioner cannot claim any brownie points on the basis of these two documents. 6. Learned counsel for the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined by the Assessing Officer after taking into consideration the following:- (i) tax payable on estimated income of the previous year relevant to the assessment year ; (ii) tax payable on the assessed or returned or estimated income, as the case may be, of last four previous years ; (iii) existing liability under the Income-tax Act, 1961 and Wealth-tax Act, 1957 ; (iv) advance tax payment tax deducted at source and 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. ( Emphasis Supplied) 10. The Delhi High Court in the case of Cloudtail India Private Limited (supra) opined that Rule 28AA is a statutory and mandatory provision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine the correctness of the decision making process. At the cost of repetition, in our opinion, the decision making process is faulty and impugned order Annexure P-5 and P-7 are passed without considering the relevant factors ingrained in Clause (i), (ii), (iii) and (iv) of sub-rule (2) of Rule 28-AA. 15. Resultantly, both the impugned orders Annexure P-5 and P-7 are set aside. The matter is remitted back to respondent No. 2, who shall consider the claim of petitioner in accordance with law and pass a fresh detailed/speaking order thereupon within 30 days from the date of communication of this order. It is made clear that this Court has not expressed any opinion on the merits of the case. 16. Petition is disposed of. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
