Sooriya Hospital v. The Deputy Commissioner Of Income Tax, Tds Circle 3(1), Tds Range 3

W.P.No.30471 of 2023 and W.M.P.Nos.30093 & 30094 of 2023 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19.10.2023 CORAM THE HON'BLE Mr. JUSTICE KRISHNAN RAMASAMY W.P.No.30471 of 2023 and W.M.P.Nos.30093 & 30094 of 2023 Sooriya Hospital,Represented by its Partner,Dr.C.P.Sreekumar,1/1, Arunachalam Road,Saligramam, Chennai – 600 093. ... Petitioner Vs. 1.The Deputy Commissioner of Income Tax, TDS Circle 3(1), TDS Range 3, No.120, BSNL Building, Greams Road, Chennai – 600 006. 2.The Assistant Commissioner of Income Tax (TDS), No.121, M.G.Road, Nungambakkam, Chennai – 600 006.... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the entire records of the respondents contained in its notice bearing Communication Reference No.04102017/00012/LP, dated 04.10.2017, issued by the 2[nd ]respondent and the consequent email dated 03.02.2023 issued by the 1[st ] 1/8 W.P.No.30471 of 2023and W.M.P.Nos.30093 & 30094 of 2023 respondent in the petitioner's case for TAN:CHES15108C for FY 2016-17 and to quash the same as arbitrary, illegal and unjust and to consequently forbear the respondents or its superiors, subordinates, agents etc., from prosecuting the petitioner or any person declared as the petitioner's Principal Officer under Section 276B/276BB of the Income Tax Act, 1961 for belated remittance of Tax deducted at Source (TDS) for FY 2016-17. For Petitioner: Mr.Suhrith Parthasarathy For Respondent: Dr.B.Ramaswamy Senior Standing Counsel ORDER Dr.B.Ramaswamy, learned Senior Standing Counsel takes notice for the respondents. By consent of the parties, the main writ petition is taken up for final disposal at the admission stage itself. 2.This writ petition has been filed by the petitioner seeking to call for the entire records of the respondents contained in its notice bearing Communication Reference No.04102017/00012/LP, dated 04.10.2017, issued by the 2nd respondent and the consequent email dated 03.02.2023 issued by the 1strespondent in the petitioner's case for TAN:CHES15108C for FY 2016-17 and to quash the same as arbitrary, 2/8 W.P.No.30471 of 2023and W.M.P.Nos.30093 & 30094 of 2023 illegal and unjust and to consequently forbear the respondents or its superiors, subordinates, agents etc., from prosecuting the petitioner or any person declared as the petitioner's Principal Officer under Section 276B/276BB of the Income Tax Act, 1961 for belated remittance of Tax deducted at Source (TDS) for FY 2016-17. 3.Learned counsel for the petitioner submitted that the petitioner paid TDS with the delay. However, he had remitted the TDS with the penalty. Subsequently, the petitioner received a notice dated 04.10.2017 from the 2nd respondent asking the petitioner to show cause as to why the petitioner should not be prosecuted under Section 276B/276BB of the Income Tax Act, 1961. He further submitted that the criminal proceedings can be initiated when the petitioner failed to remit the TDS. However, in the present case, the entire TDS amount was deposited and therefore, the respondents cannot initiate prosecution against the petitioner. 4.In support of his contention, he produced the judgment of the Jharkhand High Court in the case of Dev Multicom Private Limited vs. 3/8 W.P.No.30471 of 2023and W.M.P.Nos.30093 & 30094 of 2023 The State of Jharkhand and ors. made in Crl.M.P.No.2941 of 2018, etc dated 28.02.2022. Against the said judgment SLP was preferred in S.L.P.No.3073 of 2023 by the Income Tax Department before the Hon'ble Supreme Court and the same came to be dismissed vide order dated 20.03.2023. Relying upon the said judgments, he submitted that the intention of the respondents to prosecute the petitioner is not substantive. 4.In support of his contention, he produced the judgment of the Jharkhand High Court in the case of Dev Multicom Private Limited vs. 3/8 W.P.No.30471 of 2023and W.M.P.Nos.30093 & 30094 of 2023 The State of Jharkhand and ors. made in Crl.M.P.No.2941 of 2018, etc dated 28.02.2022. Against the said judgment SLP was preferred in S.L.P.No.3073 of 2023 by the Income Tax Department before the Hon'ble Supreme Court and the same came to be dismissed vide order dated 20.03.2023. Relying upon the said judgments, he submitted that the intention of the respondents to prosecute the petitioner is not substantive. 5.On the other hand, Dr.B.Ramaswamy, learned Senior Standing counsel appearing for the respondents would submit that on 04.10.2017, they have asked for quantum of total amount deposited towards TDS and other particulars however, instead of furnishing the same, the petitioner approached this Court to quash the notice dated 04.10.2017 and the email communication dated 03.02.2023. Learned Senior Standing Counsel further submitted that the 2nd respondent had asked to provide certain particulars, after the perusal of the said particulars only they can decide whether the petitioner has to be prosecuted or not. 4/8 W.P.No.30471 of 2023and W.M.P.Nos.30093 & 30094 of 2023 6.On perusal of the records and hearing the submissions made by the learned counsel for the petitioner as well as the learned Senior Standing Counsel for the respondents, it is seen that in the present case, the notice under challenge was show cause notice dated 04.10.2017, wherein the 1st respondent had asked for certain particulars from the petitioner. Thereafter, through email dated 03.02.2023, the 1st respondent called upon the petitioner to furnish their reply. Thereafter, on 20.06.2023, the petitioner had sent a reply through letter to the 1st respondent. 7.Under such circumstances, this Court directs the 1st respondent to consider the reply of the petitioner dated 20.06.2023 and provide an opportunity of personal hearing to the petitioner before passing any orders in the present issue. In such case, the petitioner is directed to participate in the personal hearing along with necessary documents and the 1st respondent shall decide the present issue taking into consideration the judgment of the High Court and the Hon'ble Supreme Court which are produced before this Court and pass appropriate orders. 5/8 W.P.No.30471 of 2023and W.M.P.Nos.30093 & 30094 of 2023 8.With the above directions, this writ petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed. Speaking/Non-speaking orderIndex : Yes / NoNeutral Citation : Yes / Norst 19.10.2023 (4/8) To: 1.The Deputy Commissioner of Income Tax, TDS Circle 3(1), TDS Range 3, TDS Circle 3(1), TDS Range 3, 6/8 W.P.No.30471 of 2023and W.M.P.Nos.30093 & 30094 of 2023 No.120, BSNL Building, Greams Road, Chennai – 600 006. 2.The Assistant Commissioner of Income Tax (TDS), No.121, M.G.Road, Nungambakkam, Chennai – 600 006. KRISHNAN RAMASAMY.J.,rst 7/8 8/8 https://www.mhc.tn.gov.in/judis W.P.No.30471 of 2023and W.M.P.Nos.30093 & 30094 of 2023 W.P.No.30471 of 2023and W.M.P.Nos.30093 & 30094 of 2023 19.10.2023(4/8)