TMI Blog2023 (10) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... years to show the tax payable on the assessed or returned or estimated income for these years and in the absence of audited financial statements, thus, the turnover ratio of these years could not be ascertained to arrive at the rate of lower deduction. The claim of the petitioner is that since it had been newly incorporated on 29.06.2022, it had started its business from that date only, therefore, it was obviously not in a position to file returns for the last 04 previous years. He has referred to the judgment of Manpowergroup Services India (P) Ltd [ 2020 (12) TMI 934 - DELHI HIGH COURT] to argue that since the order passed by the respondent could not be challenged by way of revision, therefore, this writ petition has been filed. In ManPowerGroup s case (supra), the assessee had filed an application for issuance of lower tax deduction certification under Section 197 of Act, 1961, which was rejected. It was held by Delhi High Court that since the impugned order was passed after seeking approval from the Commissioner, therefore, it could be challenged by way of revision before the Commissioner, therefore the writ petition was held to be maintainable despite the fact that the effi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y enabled services namely, customer call centres, data processing, business outsourcing, business development for all sorts of services relating to software, digital, mobile technologies and their maintenance, repairs, programs and operations, for industrial, commercial, domestic, defence, government and other general customers or sections of society. Petitioner is a company incorporated in India under the Companies Act, 2013 on 29.06.2022 Copy of Certificate of Incorporation issued by Ministry of Corporate Affairs is Annexure P-2. 3. On 31.12.2022, the petitioner-company had filed an application under section 197 of the Act 1961 for issuance of certificate of lower deduction of taxon the amounts/sums receivable by it for the months of January 2023 to March 2023. It had submitted Form 13 wherein the estimate total income and tax liability for the financial year 2022-23 was computed as under: Particulars Amount (in Rs.) Estimated total income of the previous year 3,15,00,000 Total tax including interest payable on the income 79,28,550 4. The petitioner s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax liability of the petitioner for the financial year 2022-2023 and for arriving at lower rate of deduction of tax had already been furnished and the petitioner was willing to furnish any other information that might have been required by the respondent. Without giving any opportunity of hearing to the petitioner, the impugned order had been wrongly passed. It is also submitted that while passing the impugned order, no approval was obtained by the respondent from the administrative superior authority, which was also contrary to the mandate of law. Therefore, prayer has been made by the petitioner for issuance of writ in the nature of certiorari for quashing the impugned order dated Nil received by the petitioner on 18.01.2023 thereby rejecting the application filed by it and further prayer of the petitioner is for directing the respondent to issue lower tax deduction certification under Section 197 of Act, 1961. 6. On notice of the petition, the respondent filed reply taking preliminary objections as to maintainability of the writ petition by alleging that the petitioner had alternative remedy available to it to assail impugned order dated dated 31.12.2022 (P-1) and since it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Certificate as it had failed to fulfill the parameters required under Rule 28AA of Rules 1962. With these submissions, it was urged that the present petition is liable to be dismissed. 10. The assessee having challenged the order passed by the respondent by rejecting its prayer to issue Lower Tax Deduction Certificate under Article 226 of the Constitution of India and the Revenue having taken the objection as to maintainability of the writ petition, therefore, before proceeding further, we propose to deal with scope of interference in such a matter. The well settled proposition of law is that though the writ of prohibition or certiorari will not be issued against the Executive Authorities, the High Court has the power to issue the same in a fit case, where the condition precedent to the exercise of jurisdiction does not exist and an executive authority acts without jurisdiction . Article 226 of the Constitution confers on the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax at lower rate or no deduction of tax, the Assessing Officer if satisfied that the estimated tax liability of a person justifies such deduction, the certificate can be issued, in accordance with provisions of Section 197 (1) of the Act, 1961. As per sub Rule 2 of Rule 28AA, the existing and estimated liability of such person shall be determined by the Assessing Officer after taking into consideration the tax payable of estimated income of the previous or relevant of the assessment year; the tax payable on the assessed or returned [or estimated income, as the case may be, of last four] previous years. 12. In the present case, the respondent had rejected the prayer of the petitioner to issue Lower Tax Deduction Certificfate on the ground that the former had failed to file returns for the last 04 previous years to show the tax payable on the assessed or returned or estimated income for these years and in the absence of audited financial statements, thus, the turnover ratio of these years could not be ascertained to arrive at the rate of lower deduction. The claim of the petitioner is that since it had been newly incorporated on 29.06.2022, it had started its business from tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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