TMI Blog2012 (9) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... or consideration towards fag end of the financial year 2009-10 and that too on a wrong ground of non-payment of outstanding dues - As the impugned order of rejection of the petitioner’s application does not state that because of outstanding dues, short deduction/no-deduction certificate u/s 197 was not issued. This is a fresh reason stated in the counter affidavit that too an incorrect reason which contention on behalf of the Revenue is wholly untenable in law - as the certificate ought to have been given to the petitioner during the financial year 2009-10 and the Department cannot take advantage of its own inaction and lapses by taking a stand that the financial year is over, thus in the peculiar circumstances the opposite party No.1 is directed to issue necessary certificate making it effective for the financial year in question - in favour of assessee. - W.P.(C) No. 27531 of 2011 - - - Dated:- 3-7-2012 - V Gopala Gowda, B M Mahapatra, JJ. For Appellant : M/s. Sanjay Kumar Acharya, Saswat Acarya, V.L. Dash, N.C. Das, P. Mahapatra, S.K. Mohanty, P.R. Mohanty B.K. Sinha. For Respondent : Mr. A. Mohapatra, Sr. Standing Counsel [For I.T. Dept.) JUDGEMENT Per : B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court of India in Paradip Port Trust vs. Paradip Dock Mazdoor Union, Civil Appeal No.1422 of 1990. The Hon ble Supreme Court vide order dated 15.03.1990, directed to constitute a High Powered Committee under Chairmanship of Mr. H.R. Khana, Former Judge, Supreme Court of India with two members nominated by the Ministry of Surface Transport, one of whom is a representative of that Ministry and another is an expert in Port Management. The High Powered Committee had to decide the question of listing the unlisted labourers and their welfare measures at Paradeep Port Trust. As per recommendation of the Hon ble Former Justice Mr. H.R. Khanna, Supreme Court of India, a body was formed in the name of petitioner-Management Committee (CFH) Scheme. The petitioner- Committee comprises all Stevedores , Senior Officials of Paradeep Port Trust and Labour Representatives from different labour Unions to manage uniform engagement of labourers and disbursement of wages ensuring their welfare, health, housing and retirement benefit etc., so as to ensure that no labour of the pool is exploited by any of the Stevedores. Thus, the power of disbursement of wage was withdrawn from the steve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the petitioner on the plea that since the financial year had already lapsed, certificate under Section 197 of the Act, for the financial year 2009-10 cannot be issued. Hence, the present writ petition. 4. Mr. S.K. Acharya, learned counsel appearing for the petitioner submitted that due to dilatory tactics of opposite party nos.1 to 3 and particularly, the action of opposite party No.1 for non-compliance of the order of this Court, the petitioner is now falling within the mischief of the penal and prejudicial proceedings under Section 40 (a)(ia) of the Act, 1961. Since, No-Deduction Certificate had not been issued to the petitioner in time, some principals who engage the services of the labourers through the petitioner trust, made payments to the petitioner deducting TDS from such payments, whereas other principals have not deducted TDS considering the fact that the petitioner has been getting the No-Deduction Certificate in the past. Consequently, the petitioner faces a double edged sword in the manner of wrongful collection of taxes form the payments made by principals after deducting TDS and disallowances under Section 40(a)(ia) for payments made by principals without dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public duties, for their negligence and highhandedness. 7. Mr. A. Mohapatra, learned Standing Counsel appearing on behalf of the I.T. Department submitted that the present writ petition filed by the petitioner is not maintainable at the threshold for suppression of facts particularly about the hefty demand that was outstanding against the assessee for which certificate of lower/nodeduction could not be issued and the assessee was aware that only after payment of such arrears of tax the certificate could have been issued. The petitioner filed an application in Form No.13 for issuance of lower deduction certificate under Section 197 of the Act on 22.06.2009. On 25.03.2010 the Assessing Officer by his letter dated 22nd/25.03.2010 reported to the I.T.O.(TDS) that as per the demand notices an amount of Rs.27,36,625/- for the assessment year 2004-05 and Rs.4,62,13,909/- for the assessment year 2005-06 was outstanding against the assessee. Accordingly short deduction/No-Deduction certificate was not issued to the assessee. As per order sheet dated 25.03.2010, it was intimated to the Advocate for the Assessee that certificate of lower/no deduction will be issued only after payment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioner filed his application on 22.06.2009 for issuance of certificate under Section 197 of the Act, for the financial year 2009-10 to different persons but the said application was rejected by the impugned order dated 13.08.2010 (Annexure-1) on the ground that the relevant financial year in question was over. In the impugned order only one ground i.e. lapse of financial year in question has been indicated for rejection of application of the petitioner for issuance of no-deduction certificate under Section 197 of the I.T. Act. However, in paragraph-4 of the counter affidavit, the Income Tax Department has taken a stand that on 25.03.2010, the Assessing Officer by his letter No.ACIT/Cir- 1(2)/CTC/Misc/2009-10/13543 dated 22nd/ 25.03.2010 reported that as per the demand notices an amount of Rs.27,36,625/- for the assessment year 2004-05 and Rs.4,62,13,909/- for the assessment year 2005-06 was outstanding against the assessee. Accordingly, short deduction/no deduction certificate was not issued to the assessee. It is unfortunate that such a reason was neither indicated in the impugned order of rejection dated 13.08.2010 passed under Annexure-1 nor taken by the Income Tax Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken up for the first time for consideration towards fag end of the financial year 2009-10 and that too on a wrong ground of non-payment of outstanding dues, nodeduction certificate was not issued to the petitioner-assessee during financial year 2009-10. 13. At this juncture, it is relevant to mention the circular of the CBDT bearing Circular No.F.No.20/23/67 IT(A-I) to expeditiously dealt with the application filed by the Charitable trust for issuance of certificate for deduction of tax at lower rate or without deduction of tax. The said Circular of the CBDT is extracted below:- Letter F. No.20/23/67-IT(A), DT. 28-7-1967 Issue of certificate under s. 197 to charitable trusts whose income is exempt under s.11 A number of cases have come to the notice of the CBDT, where charitable trusts, whose income is exempt under s.11 are filing applications for refund every year to claim refund in respect of tax deducted at source under s. 193 or s. 195. The CBDT desires that in such cases the ITOs should be instructed to bring to the notice of the trusts, the provisions of s. 197, under which the trust can ask the ITO to issue a certificate in its favour directing that either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p. 18): Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older. 17. Admittedly, the impugned order of rejection of the petitioner s application does not state that because of outstanding dues, short deduction/no-deduction certificate under Section 197 of the Act was not issued. This is a fresh reason stated in the counter affidavit that too an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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