Wp(C)/14735/2015 Of Vodafone Spacetel Limited v. Asst.commissioner Of Income Tax

W.P.(C) No.14735 of 2015 05.11.2015 Heard Mr.N.Paikray, learned counsel for the petitioner and Mr.S.K.Acharya, learned Senior Standing Counsel for the Income Tax Department. 2. The petitioner (VODAFONE SPACETEL LIMITED) has filed the present writ application with a prayer to quash the letter dated 29/30th July, 2013 issued by the Asst. Commissioner of Income Tax (Opposite Party No.1) under Annexure-10, insofar as, it relates to the assessment year 2009-10 and further prayer to direct Opposite Party No.1 to pass an order on the application dated 6th February 2012 under Annexure-7 filed under Section 154 of the Income Tax Act (hereinafter referred as the Act) seeking rectification of error in the order of assessment under Annexure-6. 3. When this matter was listed before this Court on 1.10.2015, Mr. Acharya, learned Sr. Standing Counsel for the Income Tax Department had sought for an adjournment to obtain instruction regarding the status of the application filed for rectification. Today, when the matter is taken up, Mr.Acharya, learned Standing Counsel submits that the petitioner has been issued with the notice under Section 148 of the Act though Mr.Paikray, learned counsel for the petitioner is unaware of issue of such notice. Hence, Mr.Achaarya, learned Sr. Standing Counsel raised certain objections as to why the application filed under Section 154 of the Act cannot be entertained 4. The averments made on behalf of the petitioner is to a limited effect and that, the petitioner from various income derived by it, TDS has been deducted therefrom and at the time of filing of return for the year 2009-10, various TDS certificates were not filed along with the return. Later on, on receipt of the TDS certificates, the petitioner filed an application under Section 154 of the Act with a prayer to take the TDS certificate into consideration. For such purposes, he places reliance under Section 155(14) of the Act which is quoted as hereunder: S.155- Other amendments (14) Where in the assessment for any previous year or in any intimation or deemed intimation under sub-section (1) of section 143 for any previous year, [credit for tax deducted or collected in accordance with the provisions of section 199 or, as the case may be, section 206C] has not been given on the ground that the certificate furnished under section 203 [or section 206C] was not filed with the return and subsequently such certificate is produced before the Assessing Officer within two years from the end of the assessment year in which such income is assessable, the Assessing Officer shall amend the order of assessment or any intimation or deemed intimation under sub-section (1) or section 143, as the case may be, and the provisions of section 154 shall, so far as may be, apply thereto: Provided that nothing contained in this sub-section shall apply unless the income from which the tax has been deducted [or income on which the tax has been collected] has been disclosed in the return of income filed by the assessee for the relevant assessment year. Provided that nothing contained in this sub-section shall apply unless the income from which the tax has been deducted [or income on which the tax has been collected] has been disclosed in the return of income filed by the assessee for the relevant assessment year. 5. Mr. Acharya, learned Sr. Standing Counsel for the Income Tax Department submits that the petition has already been examined by the Assessing Officer and for various reasons cited at the Bar, he submits that the rectification as sought for, is not permissible. However, he fairly admits that no order on the application filed under Section 154 of the Act has yet been passed and instead, a notice under Section 148 of the Act said to have been issued. 6. In view of such submissions and on perusing Section 154 as well as 155(14) of the Act, we are of the considered view in the circumstances as arise in the present case that the Assessing Officer ought to have first dealt with the application filed under Section 154 of the Act by affording an opportunity of hearing to the petitioner and thereafter pass orders in accordance with law thereon before proceeding to issue any further notice under Section 148 of the Act as submitted. Admittedly, no notice of hearing has yet been issued to the petitioner on the petition filed by it under Section 154 of the Act. Accordingly, we allow the writ application to the extent of Discrepancy No.1. of the order dated 29.7.2013 under Annexure-10 relating to the assessment year 2009-10 only which is quashed. The Assessing Officer is at liberty to proceed with adjudicating the petition filed by the petitioner under Section 154 of the Act. For such purposes, the petitioner through his counsel may appear before the Assessing Officer on 30th November, 2015 along with the certified copy of this order as well as documentary evidence, if any. On such date, the Assessing Officer may make objection, if any, to such application in order to enable the petitioner to meet such contention. After hearing the learned counsel for the petitioner and applying his mind to whatever the documentary evidence or other evidence, as may be relied upon, orders may be passed within a period of two months therefrom. 7. In view of our above order, the purported notice said to have been issued under Section 148 of the Act is directed to be withdrawn with liberty to the Revenue to initiate such proceeding, if required, after dealing with the petition of the petitioner filed under Sec tion 154 of the Act. 8. With the aforesaid observations and directions, the writ application stands disposed of. Free copy of this order be handed over to the learned counsel for the Revenue. Urgent certified copy of this order be granted on proper application. .. I.Mahant y, J. ....... Dr.D.P.Choudhury, J.