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SCA/2260/1996 4/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2260 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.A.MEHTA Sd/-
HONOURABLE
MS.JUSTICE H.N.DEVANI Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? NO
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
EXCEL
INDUSTRIES LTD & 1 - Petitioner(s)
Versus
UNION
OF INDIA & 3 - Respondent(s)
=========================================================
Appearance :
MR
SN SHELAT, SENIOR ADVOCATE FOR MR DEVANG NANAVATI
for Petitioner(s) : 1 -
2.MS MAITHILI D MEHTA for Petitioner(s) : 1 - 2.
SERVED BY RPAD -
(R) for Respondent(s) : 1,
MR MANISH R BHATT for Respondent(s) : 2
- 4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 12/04/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
1. By
this petition under Article 226 of the Constitution of India the
petitioners seek the following substantive reliefs:
18(a)Your
Lordships will be pleased to issue a writ of or in the nature of
certiorari or any other appropriate writ, order or direction
quashing and setting aside the orders dated 20th
November 1995 and 21st
November 1995 respectively passed by the respondent No.2 herein for
the Financial Years 1992-93 and 1993-94 and permanently restraining
the respondents from enforcing the said orders (Exh. ‘E’
collectively);
(aa) Your
Lordship be pleased to quash and set aside the order dtd. 22/3/99
passed by the Commissioner, Income Tax (Appeals), Rajkot in Appeal
No. 480-481 of 1995-96 and remand the present matter to the
Commissioner of Income Tax (Appeals), Rajkot as the said order is not
in merits, for deciding the same afresh. And may kindly continue the
stay granted vide order dtd. 26/3/96 while issuing notice which came
to be extended by an order dtd. 8/4/96 till further orders, the
Hon’ble High Court may thus kindly continue the same till the final
disposal of the Appeal before the Commissioner, Income Tax (Appeals),
Rajkot.
18(aaa)
Your Lordship be pleased to quash and set aside the order dated
19/1/1005 passed by the Hon’ble Income Tax Tribunal passed in Appeal
No. I.T.A. Nos. 243 and 244 (RJT) of 1999.
18(aaa) Your
Lordships be pleased to give suitable directions to the Commissioner
Income Tax (Appeals), Rajkot as regards the proceedings remanded to
it by this Hon’ble High Court, shall decide the said issue afresh in
accordance with the Provisions of Law for failure to issue TDS
Certificates to the creditors and/or contractors about tax deduction
in time as required under Section 203 read with Rule 31 of the
Income Tax Act, 1961
(b) Your
Lordships will be pleased to issue a writ of or in the nature of
mandamus or any other appropriate writ, order or direction declaring
Section 272A(2)(g) of the Income Tax Act, 1961, and Rule 31 of the
Income Tax Rules as invalid in law, ultra vires Article 14 of the
Constitution of India and permanently restraining the respondents
from enforcing the said provisions against the petitioners .
At
the outset Mr. S.N. Shelat, learned Senior Advocate appearing on
behalf of the petitioners states that he does not press the reliefs
prayed for vide paragraph 18(b) of the petition whereby the
constitutional validity of section 272A(2)(g) of the Income Tax Act,
1961 and Rule 31 of the Income Tax Rules has been challenged.
In
view of the fact that the challenge to the constitutional validity
of the provisions of section 272(2)(b) of the Act has been dropped,
there is no reason for this Court to enter into the merits of the
case, in view of the statutory remedy available under the Act.
However, it may be noted that the petitioner had already availed of
the remedy of appeal before Commissioner (Appeals) as well as the
remedy of second appeal before the Income Tax Appellate Tribunal
(Tribunal), which came to be disposed of vide the impugned orders
dated 23.3.1999 passed by Commissioner (Appeals) as well as order
dated 19.1.2005 made by the Tribunal whereby both the Appellate
Authorities have disposed of the appeals directing the Assessing
officer to follow the judgment that may be delivered by the High
Court in the present writ petition.
In
the circumstances, the interests of justice require that the appeals
preferred by the petitioner before the Commissioner (Appeals) be
restored.
In
the aforesaid circumstances, without going into the merits of the
case, since neither of the Appellate Authorities have decided the
case on merits, the impugned order dated 23.3.1999 passed by
Commissioner (Appeals) (Annexure-‘H’) as well as order dated
19.1.2005 made by the Tribunal (Annexure- I’) are hereby quashed
and set aside. Appeals No.CIT-R-I/0481 and 0480/95-96 are restored
to the file of Commissioner (Appeals). Commissioner (Appeals) shall
decide the appeal afresh in accordance with law after giving an
opportunity of hearing to the petitioner.
In
light of the fact that the order of Commissioner (Appeals) as well
as the Tribunal have been set aside and the appeals have been
restored to the file of Commissioner (Appeals), learned Advocate for
the petitioner does not press the relief as prayed for vide
paragraph 18(a) of the petition.
In
the circumstances, the petition is, accordingly, partly allowed.
Rule is made absolute to the aforesaid extent with no order as to
costs. Interim relief granted earlier shall continue till the final
disposal of the Appeal by Commissioner (Appeals).
Sd/-
Sd/-
(D.A.Mehta,
J.) (H.N.Devani, J.)
M.M.BHATT
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