TMI Blog2011 (4) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred to the Commissioner TDS - The Commissioner TDS has manifestly erred in treating the said applications as applications made afresh and in rejecting the same as time barred. In our opinion, the Commissioner TDS ought to have decided the said applications on the merits as the same were filed within the specified time - Decided in favour of the assessee - 19262 and 19390 of 2010 - - - Dated:- 7-4-2011 - REKHA MANHARLAL DOSHIT MS., JYOTI SARAN, JJ. JUDGMENT Ms. Rekha Manharlal Doshit C. J.- 1. With the consent of the learned advocates these two writ petitions are heard and decided today. 2. These two writ petitions under article 226 of the Constitution are filed by the State Bank of India, Raj Bhavan Branch, Patna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, Patna, did not consider the plea that the interest paid to the Government of Bihar and to its departments was not taxable and, therefore, no tax was required to be deducted at source. 4. Consequent to the aforesaid finding of shortfall in deduction of tax at source, the Additional Commissioner of Income-tax, Range-2, under his order dated March 31, 2005, made under section 271C of the Act imposed penalty of Rs. 2, 37,985 upon the bank. The said order was partially modified by the Commissioner of Income-tax-1, Patna. Under his order dated March 23, 2006, made under section 264 of the Act. He reduced the penalty under section 271C of the Act to Rs. 1,28,916. 5. Feeling aggrieved, the bank filed applications for rectification of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Assessing Officer as well as before the Commissioner. He has submitted that the Assessing Officer failed to appreciate that the interest paid to the State Government is exempt from taxation. The finding that the bank was a defaulter in deducting the tax at source is ex facie erroneous, made in contravention of article 265 of the Constitution. The same was, therefore, required to be rectified in application made under section 154 of the Act. The concerned authority sat over the said applications and did not decide the same. On restructuring of the Department the papers ought to have been transferred to the Commissioner TDS. That having been not done, the bank was constrained to file applications on April 5, 2010, as it is noted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edition, volume XI, as under : "If public officials or a public body fail to perform any public duty with which they have been charged, an order of mandamus will lie to compel them to carry it out, even though the time prescribed by statute for the performance of the duty may have passed." 11. Consequently, the court held (page 208 of 71 ITR) : "it was the duty of respondent No. 1 to make the necessary correction in the initial assessment order. By omitting to carry out the necessary correction, respondent No. 1 cannot defeat the rights of the assessee. If respondent No. 1 failed to carry out his duty at the proper time, this court can give the appropriate direction to respondent No. 1 to do the needful now." 12. Sub-section (8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (8) of section 154 of the Act. Pending those applications, in view of some restructuring within the Department, the jurisdiction to decide the applications under section 154 of the Act was transferred to the Commissioner TDS. The Commissioner TDS has, since assuming the jurisdiction, rejected the applications by the impugned orders on the premise that the applications before him were made on April 5, 2010, long after the expiry of the period of limitation and that the earlier applications made in the year 2007 were not decided by the concerned authority within six months as envisaged by sub-section (8) of section 154 of the Act. 16. In the present case, as recorded hereinabove, the bank did approach the Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
