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2016 (10) TMI 773 - MADRAS HIGH COURT

2016 (10) TMI 773 - MADRAS HIGH COURT - TMI - Seeking stay of recovery proceedings - sick industrial unit - seeking protection - failure to discharge TDS liability - petitioner/appellant had deducted at source with respect to certain payments and not paid - Held that:- No material has been placed before this Court, as to whether, the appellant has given a cheque for ₹ 25,00,000/-, as stated in E-Mail, dated 20.01.2016 and thereafter, sent the amount, by RTGS. There are no materials, to ind .....

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ion dismissed - Decided against the assessee. - WRIT APPEAL No.250 of 2016 and C.M.P. No.4260 of 2016 - Dated:- 19-7-2016 - THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR For the appellant : Mr.Nithyaesh Natraj M/s.Nithyaesh & Vaibhav For the respondent : Mr.J.Narayanasamy JUDGMENT S.Manikumar, J. Challenge in this appeal is to an order of the writ court, made in W.P.No.3611/2016 dated 22.02.2016, by which, the writ court, declined to entertain the writ pe .....

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as per the provisions of the Sick Industrial Companies Act, 1985 (SICA), by invoking the provisions of the Income Tax Act, 1961, pursuant to a proceeding dated 20.01.2016 issued by the respondent. 3. Proceedings dated 20.01.2016 of the Assistant Commissioner of Income Tax, New Delhi reads as follows: " To The Principal Officer, M/s.Tecpro System Ltd., 202-204, Pacific Square Mall JMD Campus Sector-15, Gurgaon Sub:- Assessee deemed to be an assessee in default u/s 201 of the Income Tax Act, .....

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, you are required to discharge this TDS liability of ₹ 17,13,74,191/- and interest of ₹ 5,31,87,872/- (approx.) u/s 201(1A) of Income Tax Act, totalling to ₹ 22,45,62,063/- immediately. In case of non-compliance recovery proceedings as per the Income Tax Act, 1961 shall be initiated accordingly." 4. Contention of the writ petitioner is that TDS is deducted at Chennai and their office is located at Chennai. Therefore, when part of the cause of action has arisen within the .....

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20.01.2016 passed by the respondent is at New Delhi, the Delhi High Court alone has jurisdiction to entertain the writ petition. Reliance has been made to a decision in Rajkumar Mangla v. Chairman, Central Board of Direct Taxes and others reported in (1998) 234 ITR 0113. 5. Writ court also considered a decision in Kusum Ingots & Alloys Ltd. v. Union of India and another resported in 2004 (6) SCC 254, wherein the Hon'ble Supreme Court held as follows: "30. We must, however, remind ou .....

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s follows: "5. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the writ petition has been filed pursuant to the order dated 20.01.2016 passed by the respondent at New Delhi. Though the prayer sought for is for the issuance of a writ of mandamus, the learned counsel appearing for the respondent submitted that no record is available in Chennai office and all the records are only in New Delhi .....

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rial jurisdiction at Chennai. When the petitioner is an assessee in the office of the Income Tax Department at New Delhi, only the Courts at New Delhi shall have jurisdiction. The ratio laid down in the judgment of the Honourable Supreme Court reported in 2002 (1) SCC 567 [Union of India and others v. Adani Exports Ltd. and another] is against the contentions raised by the petitioner in respect of territorial jurisdiction. 6. As per Article 226(2) of the Constitution of India the power conferred .....

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ndants reside or cause of action arises. Under Section 20(b) every suit shall be instituted in a Court within the local limits of whose jurisdiction any of the defendants, where there are more than one, at the time of the commencement of the suit, actually or voluntarily resides, or carries on business or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business or personally work for gain, as aforesaid .....

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petition at Chennai. Mr.P.S.Raman, learned senior counsel appearing for the petitioner, fairly submitted that it cannot be said that Delhi High Court shall not have jurisdiction to entertain the writ petition. Since there is no cause of action, either wholly or in part, occurred at Chennai, this Court has no jurisdiction to entertain the writ petition filed by the petitioner. 7. The petitioner having an office at Chennai shall not confer territorial jurisdiction at Chennai. That apart, the lear .....

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applicable to the petitioner's case. Since the writ petition is being decided on the question of territorial jurisdiction, I am not going into the merits of the case. In these circumstances, the writ petition filed by the petitioner is rejected on the ground of territorial jurisdiction. No costs. Consequently, connected miscellaneous petition is closed." 7. Assailing the correctness of the order and inviting the attention of this court to the proceedings of the Registrar, Board for Indu .....

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ner/appellant submitted that when BIFR proceedings are pending, coercive action taken by the respondent vide order dated 20.01.2016 would amount to infringement of the right, by the respondent and that therefore there is a direct nexus to the limited relief of mandamus sought for in the writ petition and in such circumstances, writ petition ought to have been entertained. 8. Inviting the attention of this court to the certificate dated 03.02.2016 of the Chartered Accountant, Madras, learned coun .....

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in the light of the above, he contended that part of cause of action has arisen within the territorial jurisdiction of this court. 9. Learned counsel for the petitioner/appellant further submitted that the coercive enforcement measures would be directly taken only against Chennai premises, where the bank accounts are maintained, assets and properties are situated within the jurisdiction of this court and not against their Delhi office CES and before when a legal right is infringed, by a coerciv .....

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o submitted that the seat of the respondent is irrelevant to entertain a writ petition. 10. Placing reliance on Union of India and others vs. Adhani Export and another reported in (2002) 1 SCC 567, it is the submission of the learned counsel for the appellant that when specific averments have been made in the affidavit supporting the prayer for mandamus, writ court ought to have decided the issue of territorial jurisdiction de hors the truth or otherwise of the averments made in the affidavit. I .....

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at Chennai. Therefore, a strong nexus has been established between Chennai office and the lis relating to the subject matter in the notice dated 20.01.2016 of alleged non-deposit of TDS amount of ₹ 17,30,74,191/- for the assessment years 2013-14, 2014-15 and 2015-16 respectively. 11. It is also his contention that though the High Court of Delhi has jurisdiction to maintain a writ petition, it cannot be contended that the court at Madras has no jurisdiction for the reason that the infringem .....

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posing the maintainability, whereas, the prayer sought for is for a mandamus directing the respondent, not to take any coercive measures, as majority of the operations are carried out only at Chennai and if enforcement proceedings are allowed to continue, it would have a direct impact on the Chennai premises, which is within the jurisdiction of this court and hence the writ petition is maintainable. 12. Per contra, Mr.J.Narayanasamy, learned counsel for the respondent submitted that the petition .....

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oner/appellant. 13. Learned counsel for the respondent further submitted that in response to the demand notice, the petitioner/appellant, has sent a reply. According to him, mere existence of an office and operations at Chennai would not give rise to a cause of action for filing a writ petition within the jurisdiction of this court, as the assessee itself had admitted the place of principal office and place of business at Delhi and accordingly TAN number has been allotted at Delhi. In such circu .....

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hin whose jurisdiction, the cause of action arose. 14. For the above said reasons, he submitted that there is no error in the order impugned before this court and prayed for dismissal of the writ appeal. 15. Heard the learned counsel for the parties and perused the materials on record. 16. Fact that the writ petitioner M/s.Tecpro System Limited, 202-204, Pacific Square Mall, JMD Campus, Sector-15, Gurgaon, has been issued with Tan number at Delhi viz.TANDELT03519F has not been disputed. Survey o .....

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1- reg. Please refer the above In this regard, it has been observed that during the course of survey operation u/s 133A of the Income Tax Act, 1961 on 20.01.2016 in your case at the above mentioned premises, you have deducted TDS amount of ₹ 17,43,74,191/- for the F.Y.2013-14, F.Y.2014-15 and F.Y.2015-16, which has not been deposited into the Govt A/c till date. In view of the same, you are hereby held as an assessee deemed to be in default u/s 201 of the Income Tax Act, 1961. Therefore, y .....

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dam, Whereas, your attendance is required in connection with the assessment proceedings under the Income Tax ACt, 1961 in the case of M/s.Tecpro System Limited, 202-204, Pacific Square Mall, JMD Campus, Sector-15, Gurgaon. You are hereby required personally to attend my office at Room No.307, 3rd Floor, Aayakar Bhawan, Laxmi Nagar, Delhi - 110092 on 28.01.2016 at 11.30 a.m, thereto give evidence and/or to produce either personally or through an authorised representative the books of accounts or .....

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upon you under Section 272A(1)(c) of the Income Tax Act, 1961." 17. In response to the above, the petitioner/appellant has sent an e-mail dated 20.01.2016, which is extracted here under: "Dear sirs/Madam, Kind Attn: Ms.Sudha Yadav Asst. Commr. IT With reference to your visit to our Gurgaon office today on 20.01.2016 and subsequent discussions had with you, as desired by you the documents were submitted to you and the left out documents if any shall be sent to you shortly. As regards t .....

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payment plan, it may kindly be noted that considering the present cash flow problem faced by the company, the proposal for balance payment needs to be discussed with all respective departments/customers and shall revert back to you in 10/15 days. Alternatively, we shall also propose certain customers from where we have to get major payment and the liability against TDS amount may please be collected from our customers directly on our behalf. As this issue needs to be discussed with our Project/ .....

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8377; 13.83 Cr. during the period 13-14 & 14-15 and the break up of the amount is as under: Financial Year 13-14 Rs.8,05,92,722/- Financial Year 14-15 Rs.5,78,00,334/- Total Rs.13,83,93,056/- For the Financial year 15-16, for the period up to December, sizable amount has been deducted by the customers and the details is being obtained. It is also evident from the recores that the company has incurred huge loss during the last two financial year and amount so deducted and deposited by our var .....

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They have also expressed cash flow problem. Registration of the company under the Sick Industrial Companies (Special Provisions) Act, 1955 and the communication of BIFR has been brought to the notice of the Assistant Commissioner of Income Tax, New Delhi. On the above facts, let us consider the decisions relied on by the learned counsel for the rival parties. 19. In Union of India and others vs. Adhani Export and another reported in (2002) 1 SCC 567, the principal contenteion involved was to the .....

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e within the territorial jurisdiction of High Court at Ahmedabad. On the facts and circumstances, the High Court observed that the respondents therein carried on business of export and import from Ahmedabad. Orders for export and import placed from an executor from Ahmedabad. The documents and paymens for export and import were sent/made at Ahmedabad. The credit of duty claimed in respect of exports were received at Ahmedabad and payments were also received at Ahmedabad. Non-granting and denial .....

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action arose at Chennai. On the above facts and circumstances, the Hon'ble Apex court in Adhani Export Limited's case at paragraph Nos.16 and 17 held as follows: "16. It is clear from the above constitutional provision that a High Court can exercise the jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises. This provision in the Constitution has come up for consideration in a number of cases before this Court. In this regard, it wou .....

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ion, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. The expression 'cause of action' means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the court. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause o .....

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from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such whic .....

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al jurisdiction on the courts at Ahmedabad." 20. In Kusum Ingots & Alloys Ltd. vs. Union of India and Another reported in (2004) 6 SCC 254, the appellant company was registered under the Companies Act with the Registered office at Mumbai. It obtained a loan from Bhopal branch of State Bank of India. The bank issued notice for repayment. Questioning the vires of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, a writ petition was filed .....

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t even if a small part of cause of action arises wihtin the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum convenience." 21. The above judgment has been decided on the principle that parliamentary legislation, which receives the assent of the Presiden .....

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ion filed in the High Court of Delhi was held to be maintainable. At the same time, at paragraph No.30 of the Judgment, the Hon'ble Apex Court has also cautioned forum convenience as here under: "30. We must, however, remind ourselves that even if a small part of cause of action arises wihtin the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, .....

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y authority of the respondent Corporation at Mumbai. Appellant therein has approached Patna High Court under Article 226 of the Constitution of India and claimed various benefits including 100% disability compensation. Maintainability of the writ petition was one of the objections raised by the respondent, on the ground that no cause of action or even a fraction of cause of action arose within the jurisdiction of the Patna High Court. The appellant before the Hon'ble Apex Court contended tha .....

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) and subsequently renumbered as Clause 2 by the Constitution (XLII Amendment Act, 1976), the Hon'ble Apex court has observed as hereunder: On a plain reading of the amended provisions in Clause (2), it is clear that now High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the courts territorial jurisdiction. Cause of action for the purpose of Art .....

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. Union of India and Another, reported in (2004) 6 SCC 254, wherein at paragraph 10 the Apex Court held as follows: keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. 23. In Raheja Universal Ltd. vs. NRC Limited and others reported in (2012) 4 SCC 148, at paragraph 56, the Hon'ble Apex Court held as .....

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g financial assistance in cases wherein BIFR in its wisdom deems it necessary and finally only when both these options fail and the public interest so requires, BIFR may recommend winding up of the sick industrial company. So long as the scheme is under consideration before BIFR or it is being implemented after being sanctioned and is made operational from a given date, it is the legislative intent that such scheme should not be interjected by any other judicial process or frustrated by the impe .....

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e that the learned Single Judge ought to have considered is whether the petitioner has a right to adjudicate his case before BIFR and in the light of the dictum in Raheja Universal Ltds case, the revenue demand could be allowed pending BIFR and in such circumstances, if coercive steps are taken the assessee's right is likely to be infringed and therefore, when attention of BIFR proceedings was brought to the notice, the writ court ought to have entertained the writ petition, as the properti .....

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come Tax & Ors. reported in 1994 (209) ITR 0715 the registered Office of the company was in Gangtok, Sikkim they are carrying on business as Commission Agents of Cardamon and other agricultural produce, in Sikkim. It had no office or agent outside Sikkim. Income Tax authorities at Delhi issued notices alleging non-compliance of Section 282 of Income Tax Act, 1961. Notices were served at Delhi. Assessment proceedings were completed. When the same were questioned, one of the contentions of the .....

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, the petitioners felt aggrieved, took place in New Delhi. So, no part of cause of action arose in Sikkim. The mere fact that the companies have Registered office in Sikkim does not confer jurisdiction on this court. 27. In Rajendran Chingaravelu vs. R.K. Mishra, Additional Commissioner of Income Tax and Others, reported in (2010) 1 SCC 457, the appellant therein, who wanted to buy a property at Chennai, was carrying cash at Hyderabad Airport, he disclosed to the security personnel who checked b .....

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nnai, and therefore writ cannot be maintained at Hyderabad. On maintainability, writ petition was dismissed. The matter went upto the Hon'ble Supreme Court and on the facts and circumstances, at paragraphs 9 and 10, the Hon ble Apex Court held as follows: 9. The first question that arises for consideration is whether the Andhra Pradesh High Court was justified in holding that as the seizure took place at Chennai (Tamil Nadu), the appellant could not maintain the writ petition before it. The .....

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ill have jurisdiction. 10. In this case, the genesis for the entire episode of search, seizure and detention was the action of the security/intelligence officials at Hyderabad Airport (in Andhra Pradesh) who having inspected the cash carried by him, altered their counterparts at Chennai Airport that the appellant was carrying a huge sum of money, and required to be intercepted and questioned. A part of the cause of action therefore clearly arose in Hyderabad. It is also to be noticed that the co .....

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Pradesh High Court. It could be seen from the above judgment of the Apex Court that though the actual seizure was done at Chennai, the proceedings under the Income Tax Act, were taken only within the jurisdiction of the court, at Hyderabad, and thus the Hon'ble Apex Court held that the High Court of Andhra Pradesh, alone has jurisdiction. 28. In Rajkumar Mangala vs. Chairman, Central Board of Direct Taxes and others reported in 1998 234 ITR 0113, the petitioner therein was aggrieved over thr .....

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e filed writ petitions in the High Court of Delhi, which posed a question as to how the jurisdiction of the High Court was invoked for setting aside the orders passed by the authorities of the Income Tax department situated within the State of Haryana. The contention of the petitioner therein was that he was canvassing his fundamental right and by virtue of Article 226(2) of the Constitution of India, High Court of Delhi had jurisdiction, as the cause of action had arisen within the territorial .....

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ble Division Bench of the Delhi High Court held that so far as the impugned order of the IT Authority situate within the State of Haryana is concerned, no cause of action has arisen to the petitioner, within the territorial jurisdiction of the High Court of Delhi. Thus the writ petition filed was dismissed. 29. In the case on hand, though the petitioner has contended that the right under BIFR is likely to be infringed and that there is a threat if the respondent is not restrained by a writ of ma .....

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Income Tax, New Delhi on the grounds of infrignement of right or threat thereof. Thus in the normal course, if the appellant had to challenge the orders, the same would have been done, at New Delhi, which the appellant, in a way has also admitted that, if there was any challenge to the orders and prayer made for certiorari, an objection as to maintainability of the writ petition on territorial jurisdiction, can be made. No materials have been placed before this court as to whether order dated 2 .....

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er Section 133-A of the Income Tax Act, 1961 and that the Assistant Commissioner of Income Tax, Circle 76(1), TDS-2, New Delhi, has found that the petitioner/appellant has deducted TDS amount of ₹ 17,13,74,191/- for the financial years 2013-14, 2014-15 and 2015-16 respectively, and deposited to Government Account. There is also categorical admission by the assessee that on account of financial situation faced by the company, they were not in a position to remit the money immediately, as th .....

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s to whether the petitioner/appellant, has committed any violation of the provisions of the Income Tax Act and thus recovery proceeding should be initiated or not, but there is an admission on the part of the petitioner/appellant. 31. Article 226 of the Constitution of India, deals with the powers of the High Court, to issue certain writs and the said Article is extracted hereunder: "(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in .....

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person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories 32. Reading of Sub-Article (1) of Article 226 indicates that every High Court has the power throughout the territories in relation to which it exercise jurisdiction namely, to issu .....

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uch person is not within those territories. Plain reading of Article 226 of the Constitution, it is manifestly clear that High Court can exercise power to issue directions, order or writs for the enforcement of any fundamental rights conferred by Part III of the Constitution or for any other purposes, if the cause of action wholly or partly has arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or residence o .....

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situation that entitles one person to obtain a remedy in court from another person (see Black s Law Dictionary). In Stroud s judicial Dictionary a cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase cause of action in common legal parlance is existent of those facts, which give .....

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e facts and circumstances of the case, the issue to be considered, is whether, the petitioner/appellant has established a legal right or there is any cause or any material, to substantiate that such right has been infringed or a threat thereof, within the territorial jurisdiction of this Court. 35. Cause of action for filing the present writ petition, for a Mandamus, directing the Assistant Commissioner of Income Tax, New Delhi, respondent herein, not to take any coercive or any other steps agai .....

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deducted, failing which, recovery proceedings would be initiated by the competent authority at New Delhi. The petitioner/appellant may have a right to pursue his remedy before BIFR, at New Delhi. But on the facts and circumstances of this case, no part of cause of action has arisen, either wholly or in part, within the territorial jurisdiction of this Court, so as to enable this Court to examine, as to whether, the petitioner's legal right has been infringed. 36. Insofar as the action taken .....

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7,13,74,191/- for the financial years 2013-14, 2014-15 and 2015-16 respectively and not deposited to the Government Account. The petitioner/appellant has been held as an assessee in default under Section 201 of the Income Tax Act, 1961, at Delhi and called upon to discharge the TDS liability. The petitioner/appellant has been only informed that in case of non-compliance, recovery proceedings would be initiated, as per the provisions of the Income-Tax Act. 37. The petitioner/appellant has been di .....

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, as stated in E-Mail, dated 20.01.2016 and thereafter, sent the amount, by RTGS. There are no materials, to indicate, as to whether, the respondent has taken any further proceedings, after 20.01.2016, notwithstanding the pendency of the proceedings, under the SICA Act, which is stated to have been communicated on 21.09.2015, which according to the appellant, is an infringement of right, available under the provisions of the SICA Act and that no tax could be coercively collected. For the abovesa .....

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