TMI Blog2017 (8) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner in exercise of his revisional powers. We may refer to the decision of Supreme Court in case of Commissioner of Income Tax and ors vs. Chhabil Dass Agarwal [2013 (8) TMI 458 - SUPREME COURT] in which the Court observed that barring some exceptions, the rule would be that the jurisdiction under Article 226 of the Constitution should not be invoked where there is availability of an equally efficacious alternative remedy under the statute. It was emphasized that this would be more so in taxation statute where the statute statute provides complete machinery for assessment, re-assessment of tax, imposition of penalty and appeals. - Special Civil Application No. 2686 of 2016 - - - Dated:- 21-8-2017 - MR. AKIL KURESHI AND MR. BIREN VAISHNAV, JJ. For The Petitioner : Mr Tushar P Hemani, Advocate And MS Vaibhavi K Parikh, Advocate For The Respondent : Mrs Mauna M Bhatt, Advocate ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged a notice dated 21.01.2016 issued by the respondent-Commissioner of Income Tax seeking to take petitioner's assessment for the assessment year 2011-12 in revision in exercise of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds on which, he proposes to revise the order and why he thought that the order of assessment was erroneous and prejudicial to the interest of Revenue. In the notice, he recorded as under: In this case, the assessee company had not deducted TDS on amount paid to non-resident in respect of translation charges amounting to ₹ 66,10,416/-. As per section 195(1), any person responsible for payment to a non-resident, not being a company, any interest or any other sum chargeable under the provisions of this Act shall at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income tax thereon at the rates in force. As per Explanation 2 inserted below the section ibid vide Finance Act, 2012 with retrospective effect from 1-4-1962, it was explained that for the removal of doubts, it is hereby clarified that the obligation to comply with sub section (1) and to make deduction there under applies and shall be deemed to have always extended to all person, resident or non-resident whether or not the non resident person has a residence or plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax reported in 243 ITR 83 in which, it was observed that a bare reading of section 263 makes it clear that pre-requisite for the exercise of jurisdiction by the Commissioner is that the order of Income Tax Officer is erroneous insofar as it is prejudicial to the interest of the Revenue. The Commissioner, therefore, has to be satisfied all these two conditions. Reliance is also placed on the decision in case of Commissioner of Income Tax vs. Max India Ltd reported in 295 ITR 282 where the Supreme Court in the context of the provisions contained in section 80HHC of the Act observed that, the said provision was amended as many as eleven times. Different views existed when the Commissioner passed the revisional order. It was therefore obvious that two views were inherently possible. Counsel also relied on the decision of Division Bench of Punjab and Haryana High Court in case of Commissioner of Income Tax vs. Saluja Exim Ltd . reported in 329 ITR 603 reiterating the legal position that when two views are possible and whereas Assessing Officer had adopted one view, the Commissioner would not be justified in revising such order. 8. On the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Thus, the mere fact that the Assessing Officer carried out inquiries with respect to a certain claim of the assessee by itself would not mean that his order cannot be taken in revision by the Commissioner if it is found that the order passed was erroneous and prejudicial to the interest of revenue. 12. In the present case, the controversy is with respect to the requirement of deducting tax at source while the petitioner made remittances of translation charges to the recipient who were non-residents. The Revenue heavily relied on the Explanation 2 added below sub-section (1) of section 195 by Finance Act, 2012 but with retrospective effect from the inception. Such explanation reads as under: Explanation 2.- For the removal of doubts, it is hereby clarified that the obligation to comply with sub section (1) and to make deduction thereunder applies and shall be deemed to have always applied and extends and shall be deemed to have always extended to all persons, resident or non-resident, whether or not the non-resident person has- ( i) a residence or place of business or business connection in India; or ( ii) any other presence in any manner whatsoever ..... X X X X Extracts X X X X X X X X Extracts X X X X
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