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TMI Blog2014 (10) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... les and instructions so also clarifications issued by the tax department, each telecom circle of the petitioner has been alloted separate tax deduction and collection account number ('TAN' for short). The office address for each telecom circle is mentioned in the respective TAN(s). There cannot be any overlapping according to the petitioner in the sense that there is a jurisdiction carved out of the officers of the Income Tax Department for each circle and that is how they would derive jurisdiction to assess the petitioner's income pertaining to that circle. What has been brought to our notice and prominently is that, the second respondent to the writ petition is vested with jurisdiction only in respect of TAN No. MUM107565F, which is for the Mumbai telecom circle. 4. However, an order of assessment was passed by the second respondent demanding from the petitioner the tax deducted at source, and in the submission of the petitioner it is in relation to all telecom circles, for the financial year 2011-12. Our attention is invited to several orders passed by the jurisdictional officers in respect of other circles raising a similar demand and details thereof are at page 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed in the writ petition by this Court, recording the above statement, dated 30th April, 2014. Yet, the petitioner submits that several details have been sought and the fate of the rectification application was therefore, obvious in the light of the extensive inquiry from the petitioner and pertaining to all circles. That is how, the petitioner points out that despite providing such details, time and again the correspondence on this point continued and eventually it is only in July, 2014 that the rectification order came to be passed. The petitioner filed an earlier writ petition which was allowed to be withdrawn with liberty to file a fresh petition challenging the impugned order. 6. It is this petition, therefore, which has been eventually pursued. Mr.Mistri, learned senior counsel appearing on behalf of the petitioner submitted that the issue of commission which has been paid to the distributors, who are styled as pre-paid and post-paid, is the issue sought to be raised. If that is sought to be raised against the petitioner [by the Income Tax Officer (TDS) OSD, Mumbai], then the details of the area sought would pertain only to the Mumbai circle. In the garb of seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax (Appeals) who is a very high level officer. It cannot be presumed that he will not take into consideration any objection raised and including that of jurisdiction. Further, there is a remedy available by way of an appeal against his order to the Income Tax Appellate Tribunal. In view thereof, this writ petition should not be entertained and must be dismissed. 8. We have with the assistance of Mr.Mistri and Mr.Chhotaray perused the writ petition and all the annexures thereto. 9. It is true that a show cause notice was issued and a copy of which is at Annexure-A. The company was treated as an 'assesseein- default' and for the non compliance of the provisions of section 194J and 194H of the I.T. Act. The show cause notice refers to an annual report of the company with reference to the payment of roaming charges, commission and discounts to dealers. Then it is alleged that these charges are subject to TDS as fee for technical services under section 194J and commission and discounts to dealers under section 194H of the I.T. Act. The allegation is that the petitioner is not deducting TDS on this payment or not deducting full amount of TDS as may be applicable. Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pected is that the department should not disclose all details as they have an important bearing on the pending matter. What is expected to be followed is the settled principal that justice must not only be done but seen to be done. This minimal expectation is not fulfilled by such approach. 13. We are mindful of the fact that Annexures S & T are copies of the memo of appeal and the stay application which the petitioner has preferred before the Commissioner of Income Tax (Appeals) and against the assessment order. During the pendency thereof, we only require an assurance from the respondents and particularly the appellate authority that it will apply its independent mind to the entire controversy. In a given case, a plea of jurisdiction would be a mixed question of law and fact. A writ court is, therefore, not expected to go into the same and in its limited jurisdiction. If there is a dispute about facts, then, all the more a writ court should refrain from entering into the arena. It is contended before us that the respondents and particularly respondent No.2 was authorised and justified in seeking details of all the circles from the petitioner, then, equally, the petitioner's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced before us. To take care of the same, we have clarified as above and we direct that the Commissioner of Income Tax (Appeals) while passing the order on the appeal and the stay application should not be influenced by the contents of show cause notices and the stand of respondent No.3 as well. We would expect him to act as an independent adjudicator and act as an appellate authority by not endorsing anything that has been stated before us on affidavit. 17. Let the Commissioner decide the appeal in accordance with law and equally the stay application. The petitioner shall be heard in the event the petitioner is seeking stay of the demand raised on them and by coercive means. In the event, they desire that the appeal itself be heard on merits, then the same be decided after hearing the petitioner and in accordance with law. We would expect the authorities not to take any coercive measures until the petitioner is given an opportunity to press its application for stay atleast. It is only fair that the respondents have an open mind. 18. With the above clarification and directions, we dispose of the writ petition as in our opinion, going into the issues and which are factual and that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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