Wp/4290/2006 Of M/S. Taherali Industries And Projects, (P) Ltd v. The Asst. Commissioner Of Income Tax

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD(Special Original Jurisdiction) WEDNESDAY, THE SIXTH DAY OF DECEMBERTWO THOUSAND AND TWENTY THREE PRESENT THE HON'BLE SRI JUSTICE P.SAM KOSHYANDTHE HON'BLE SRI JUSTICE N.TUKARAMJI wRlT PET|TION NO.4290 0F 2006 Between: M/s. TaherAli lndustries and Projects, (P) Ltd., rep. by its Director, Mr.M.M. Rahman,Avenue S/o. Taher Lane, Ali, Adjacent 6-3-1089/1, to Villa Block No. Mary 1O2, Girls College, 1O3 and 301 Rajbhavan , Pavani Avenue, GulmoharRaod, Somaj(;uda,Hyderabad. ...PETITIONER AND 1.The Asst. Commissioner of lncome Tax, Circle No.ll(3), Hyderabad, A.P. 2.The Commissioner of lncome Tax, Hyderabad{1, Hyderabad, A.P. ...RESPONDENTS Petition under Article 226 of the Constitution of lndia praying that in thecircumstances stated in the affidavit filed therewith, the High Court may bepleased to issue Writ, order or direction more particularly in the nature of Writ ofCertiorari after calling for the entire connected and relevant records relating to T-50/AC.2(3), dt. 14.11.2005 issued by the Assistant Commissioner of lncome Tax,Circle-ll (3), Hyderabad to quash the same denying the credit for TDS Certificatessubmitted in the name of all individual members of the Joint Venture by holdingthat the impugned letter/communication is illegal, arbitrary, without authority [of]law as contrary to Section 199 of the [Income ][Tax ][Act, ][1961 ][and ][without]jurisdiction in as much as the other members of the Joint [venture ][have ][already]issued Disclaimer certificates [in ][respect ][of ][the two ] [Certificates bearing ][Nos.]017-B for Rs. 25,75.866/- [and ][682-8 for ][Rs. 58,39,573/- attributable ][to ][the credit]of the amounts [received ][by ][the ][Petitioner ][and ][also ][by ][holding ][that ][the ][Joint]Venture/consortium [consisting ][of ][the ][lndividual members (companies) ][for ][better] understanding, collaboration and cooperation to complete the contract withoutany intention to produce income to be shared amongst themselves as not fallingany intention to produce income to be shared amongst themselves as not fallingwithin the expression of association of persons and consequently direct the 1strespondent to allow the credit of the two TDS certificates to the credit of thePetitioner company on the basis of the intimation of assessment completedincluding the amounts received from the Joint venture project and issueappropriate proceedings thereof in accordance with law.appropriate proceedings thereof in accordance with law. l.A. NO: 1 OF 2006(WPMP. NO: 5384 OF 2006) Petition under section ['l ]s1 cpc praying that in the circumstances stated inthe affidavit filed in support of the petition, the High court may be pleased directthe I st respondent not to take or initiate any action for recovery of any lncomeTax relating to the assessment year 2oo4-2oos pending disposal of the writ orelse the petitioner would suffer serious loss and double taxation. lA NO: 1 OF 2019 Petition under Section 15'l cpc praying that in the circumstances stated inthe affidavit filed in support of the petition, the High court may be pleased tothe affidavit filed in support of the petition, the High court may be pleased topermit the petitioner to file this affidavit and the correct particulars may be takenon record.on record. lA NO: 2 OF 2019 Petition under Section 151 cpc praying that in the circumstances stated inthe affidavit filed in support of the petition, the High court may be preased todirect posting of the above writ petition for orders and may be preased to disposeof the writ petition in terms of the Judgment of the Hon,bre A.p. High courtreported in 357 ITR 396. Counsel for the petitioner: SRt SHAIK JEELANI BASHA SRI Y. RATNAKAR Counsel for the Respondents: M/s. SUNDARI R PASUPATHI,SENIOR STANDTNG COUNSEL FOR INCOME riX OCPNRTUETT The Court made the foflowing: ORDER THE HON'BLE [P.SAM ] lA NO: 2 OF 2019 Petition under Section 151 cpc praying that in the circumstances stated inthe affidavit filed in support of the petition, the High court may be preased todirect posting of the above writ petition for orders and may be preased to disposeof the writ petition in terms of the Judgment of the Hon,bre A.p. High courtreported in 357 ITR 396. Counsel for the petitioner: SRt SHAIK JEELANI BASHA SRI Y. RATNAKAR Counsel for the Respondents: M/s. SUNDARI R PASUPATHI,SENIOR STANDTNG COUNSEL FOR INCOME riX OCPNRTUETT The Court made the foflowing: ORDER THE HON'BLE [P.SAM ] AND THE HON'BLE [N.TUKARAMJI]WRIT PETTTIO[N No.4290 ][ot2O06] ORDER:(per [fltr ][n'ble ][Sri ][Jttstice P.SAM ][KOSHY)] Heard Mr.Shaik [Jeelani ][Basha, leamed ][counsel ][for ][the petitioner]and Ms.Sundari R. [Pasupathi, ][leamed ][Standing ][Counsel ][for ][the]respondent.Department.Perusedthematerialavailableonrecord.2.Thiswritpetitionisfiledassaitingtheorder,datedt4.ll.2005ofI [whereby ][respondent ][No'I ][has ][rejected ][the ] respondent [No. ]certificate submitted [by ][the petitioners in ][the name of ][joint ][venture'] 3. Today, [when ][the ][matter ][is ][taken up ][for ][hearing, leamed ][counsel ][for]thepetitionerdrewtheattentionofthisbenchtothedecisionrenderedby the unified [Andhra ][Pradesh ][High Court ][as ][it ][then was in the ][case ][of]Commissioner [of ][Income ][Tax ][v. ][Bhooratnam ][and ][Companyt ][decided]on 2l [. ]1 [1 ].2012. [The ][said ][appeals ][i'e', ] [Nos' I ] [7 ][and ][222 ][of ][2012']wherein the revenue [had challenged the decision ][of ][the Commissioner]of Income Tax [appeals, ][which ][had allowed ][appeals ][of ][the ][assessee]that [the ][partners ][in ][the ][joint ][venture ][having ][his own ][share ][of]holding workwasentitledtogettheTDScertificatesubmittedinthenameof'lzor:l [:sz ][trn:gs ][(nP)] In Tikaram and Sons Lrd. V. CST [tg6BJ 22 STC 308(SC) it was held that alterations in rhe form of procedureare always retrospective, unless there is some goodreason or other v,hy they should not be. The amendmentto rule 37 BA menlioned above which has been introducedby the lncome Tax (Eight Amendment) Rutes, 201 t,notifred, vide Noti.fication NO 57 of 20t l, dared Ocrober21, 2011 being procedural in nature, would haveretrospeclive efect and has to be given efecl to. The Revenue cannot be allowed lo relrqin raxdeducted at source without credit being available toanybody. If credit of tax is not allowed to rhe assesseeand the joint venture has not filed a return of income thencredil of the TDS cannot be taken by anybody. This is notthe spirit and intention of law. Therefore, in our view, the Assessing oficer erred indenying the benefit of the TDS mentioned in the TDScerti,ficarcs rtled by the assesses on the ground that rheTDS certificote is issued in the name of the joint ventureor a director and not the assrrsee.or a director and not the assrrsee. 4. The factual matrix of the present writ petition is similar, if not identical arising out of the same joint venture and for the same ;assessment year i.e., 2004-05, we see no good reason why the view ofthe Division Bench rendered in the case of Bhoorotnam and Companysupra should not be endorsed by this Court. 5. Accordingly, the present writ petition for the reasons rendered byAccordingly, the present writ petition for the reasons rendered by the Division Bench of this Court in an identical marter i.e., in the case Therefore, in our view, the Assessing oficer erred indenying the benefit of the TDS mentioned in the TDScerti,ficarcs rtled by the assesses on the ground that rheTDS certificote is issued in the name of the joint ventureor a director and not the assrrsee.or a director and not the assrrsee. 4. The factual matrix of the present writ petition is similar, if not identical arising out of the same joint venture and for the same ;assessment year i.e., 2004-05, we see no good reason why the view ofthe Division Bench rendered in the case of Bhoorotnam and Companysupra should not be endorsed by this Court. 5. Accordingly, the present writ petition for the reasons rendered byAccordingly, the present writ petition for the reasons rendered by the Division Bench of this Court in an identical marter i.e., in the case of Bhooratnam and Company [supra, deserves to be ][and is accordingly]allowed and the impugned [order, dated ][14. ][11.2005 ][passed ][by]respondent No.l [is ][set aside and ][the matter ][stands ][remitted ][back ][to]respondent No.1 for [passing ][appropriate ][orders ][accepting ] certificate fumished [by the petitioner ][in ][the ][name ][of ][the ][joint ][venture']While taking appropriate [decision, ][respondent ][No'l ][shall ][also keep in]mind the decision [of ][the ][High ][Court ][in ][the ][case ][of ][Bhooralnam ][and]Company supra [decided ][by ][the ][Division ][Bench ][of ][this ][Court ][under]identical set of facts. 6. Accordingly, [this ][writ ][petition ][is ][allowed. ][No order ][as ][to costs] 7As a sequel, miscellaneous [applications pending ][if ][any in this ][writ] petition, shall stand closed. That Rule Nisi has been made absolute as above.Witness the Hon'ble the Chief Justice ALOK ARADHE on this Wednesday, TheSixth Day of December, Two Thousand and Twenty Three. SD/. MOHD. SANAULLAH ANSARIASSISTANT REGISTRAR//TRUE COPY//\\r' SECTION OFFICER To, The Asst. Commissioner of lncome Tax, Circle No.ll(3), Hyderabad. 1. The Commissioner of lncorne Tax, [Hyderabad-ll, Hyderabad, ][A.P.] 2. One CC to SRI SHAIK [BASHA, ][Advocate ]IOPUC] 3. One CC to SRI Y. RATNAKAR, [Advocate ] 4. 5.One CC to SRI SUNDARI R. [PASUPATHI, ][Senior ][Standing Counsel ][for]lncome Tax Depa(ment lncome Tax Depa(ment 6.Two CD Copies \A/- MPNS HIGH COURT DATED:0611212023 rt\ [ r6,]Y(.3 7t oE[ 2923>*,ta)..!r^rTC\I:: ORDER WP.No.4290 of 2006 ALLOWING THE WRIT PETITIONWITHOUT COSTS 1)-[)3]