Samanvaya Seva Trust, ( v. The Commissioner Of Income Tax (Tds)

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 704 of 2012. Samanvaya Seva Trust, (through its Secretary Sh. Naya Mitra Sharma), Samanvaya Kuteer, Saptsarovar, Haridwar. … Petitioner. Vs. 1. The Commissioner of Income Tax (TDS), 110/25-26, 80-FT Road, Kanpur (U.P.). Road, Kanpur (U.P.). 2. The Income Tax Officer (TDS), D 29-30, Industrial Area, Haridwar. Haridwar. …Respondents. Mr. P.R.Mullick, Advocate, learned counsel for the petitioner. Mr. H.M.Bhatia, Standing Counsel (Income Tax), learned counsel for the respondents. Date July 23, 2012. Hon’ble B.S.Verma, J. (Oral) Heard learned counsel for the parties. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 21-3-2012 (Annexure-9 to the petition) passed by the respondent no.1. The petitioner has further sought a writ in the nature of mandamus directing the respondents for de-novo consideration of the application dated 24-8-2011 (Annexure No.5) on full and correct facts and/or to grant deduction of nil rate of tax on interest received from banks (other than interest on securities) for the Assessment Year 2012-13, to the petitioner trust. Learned counsel for the petitioner drew attention of this Court to the judgment passed by this Court in Writ Petition (M/S) No. 1891 of 2010, M/s Sime Darby Engineering Vs. Union of India and others, decided on 29-11-2010, which has been passed on the preliminary objection raised in the Income Tax Department in the counter affidavit stating that the petitioner has an alternative remedy to file revision before the revisional authority in view of the provisons of Section 264 of the Income Tax Act. The facts of the said case were similar to the facts of the case at hand. That case had arisen out of an application filed by petitioner company seeking certificate under Section 197 of the Income Tax Act. I have perused the entire material placed before this Court including the counter affidavit and the rejoinder affidavit filed by the parties. Learned counsel for the petitioner has contended that the learned revisional authority has not considered the case of the petitioner on merits and the order passed by the revisional authority-respondent no.1 is not a speaking order. I have pondered over the matter. The revisional authority in the impugned order (Annexure-9) has observed as under:- “03. The Assessing Officer vide his letter dated 17.10.2011 has rejected your application for issue of certificate for non deduction of tax u/s 197 with detailed reasons recorded therein. Since, the certificate u/s 197 of the Income Tax Act, 1961 is not an order within the meaning of section 264 of Income Tax Act, 1961, your application dated 27.10.2011 is being rejected.” From a bare perusal of the impugned order, it is obvious that if the revisional authority had no jurisdiction to entertain the revision, now the order passed by the Assessing Officer can be affirmed or can be set aside, therefore, the impugned order as passed by the respondent no.1 cannot be sustained. The writ petition, therefore, deserves to be allowed and the order under challenge is liable to be set aside. The writ petition is allowed. Costs easy. The impugned order dated 21-3-2012 (Annexure-9) is set aside. The matter is remanded to the respondent no.1. The respondent no.1 is directed to hear the application of the petitioner dated 27-10-2011 as a revision under Section 264 of the Income Tax Act, in view of the order dated 29-11-2010 of this Court in WPMS No. 1891 of 2010, referred to above, which was passed on the preliminary objection raised by the Income Tax Department, on merits, after giving opportunity of hearing to both the parties and to decide the same in accordance with law, expeditiously preferably within a period of three months from the date of production of a certified copy of this order without unnecessarydelay. RCP (B.S.Verma,J.)