Patna High Court – Orders
Bihar Abhikaran Pvt. Ltd. vs Union Of India on 23 January, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11182 of 2021
======================================================
Bihar Abhikaran Pvt. Ltd. Through its Authorised person Rakesh Kumar
Gupta, Son of Late Mahabir Prasad Gupta C/o Bihar Abhikaran Pvt. Ltd.
Behind Hira Place, Dakbanglow Road, Patna 800001 P.S.- Kotwali, P.O.-
GPO, District- Patna. ... ... Petitioner
Versus
1. Union of India through Secretary Finance North Block, New Delhi 110001.
2. Chairman CBDT, North Block, New Delhi 110001.
3. The Principal Chief Commissioner of Income Tax Birchand Patel Marg,
Patna.
4. The Commissioner of Income Tax- I Birchand Patel Marg, Patna.
5. The Commissioner of Income Tax TDS Birchand Patel Marg, Patna.
6. The Income Tax Officer ward 2 (I) Lok Nayak Bhawan, Dakbanglow Road,
Patna- 800001.
7. Assistant Director of Income Tax Income Tax department, CPC, Post Bag
No.1, Electronic City Post Office, Bangalore- 560500.
... ... Respondents
======================================================
with
Civil Writ Jurisdiction Case No. 12196 of 2021
======================================================
Bihar Abhikaran Pvt. Ltd. through its Authorised Person Rakesh Kumar
Gupta age 55 year male Son of Late Mahabir Prasad Gupta C/o Bihar
Abhikaran Pvt Ltd. Behind Hira Place, Dakbanglow Road, Patna 800001 P.S.
Kotwali P.O. GPO, District Patna. ... ... Petitioner
Versus
1. Union of India through Secretary Finance North Block, New Delhi 110001
2. Chairman, CBDT, North Block, New Delhi 110001
3. The Principal Chief Commissioner Income Tax, Birchand Patel Marg, Patna
4. The Commissioner of Income Tax, I, Birchand Patel Marg, Patna.
5. The Commissioner of Income Tax TDS, Birchand Patel Marg, Patna.
6. The Income Tax officer Ward 2(1) Lok Nayak Bhawan, Dakbanglow Road,
Patna-800001.
7. Assistant Director of Income Tax, Income Tax Department, CPC, Post Bag
No1. Electronic City Post Officer, Bangalore 560500
... ... Respondents
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 11182 of 2021)
For the Petitioner : Mr. Prakash Sahay, Advocate
For the Respondents : Ms. Archana Sinha, Sr.SC
(In Civil Writ Jurisdiction Case No. 12196 of 2021)
For the Petitioner : Mr. Prakash Sahay, Advocate
For the Respondents : Ms. Archana Sinha, Sr.SC
======================================================
Patna High Court CWJC No.11182 of 2021(19) dt.23-01-2025
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
19 23-01-2025
Heard Mr. Prakash Sahay, learned Advocate for the
petitioner(s) and Ms. Archana Sinha, learned Senior Standing
Counsel, Department of Income Tax.
2. Since both the writ applications involve common
questions and issues, on the request of learned counsel for the
parties, this Court has taken up both the writ applications
simultaneously and those are being disposed of by this common
order. The only difference of facts would be the amount of
refund claimed by the petitioner(s) and the assessment years.
3. For the sake of gravity, we take the reliefs prayed
by the petitioner in CWJC No. 12196 of 2021. The petitioner
prays for the following reliefs:
"(i) For issuance of an appropriate
writ/order/direction in the nature of
certiorari/mandamus to why not to quash
annexure 8 order passed which is without
jurisdiction and is in violation to law.
(ii) For issuance of an appropriate
writ/order/direction in the nature of
certiorari/mandamus commanding upon the
concerned respondents to restrict the demand of
Rs. 186430.00 when the refund has already been
made for the assessment year 2018-19 along with
interest as the order has been passed on repeal rule
i.e. Rule 32AB.
(iii) For issuance of an appropriate
writ/order/direction in the nature of
Patna High Court CWJC No.11182 of 2021(19) dt.23-01-2025
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certiorari/mandamus commanding upon the
concerned respondents that notice cannot be
issued on repealed Rule.
(iv) For issuance of WRIT to hold Rule 37 BA to
be ultra vires as it is in violation to Article 265 of
the Constitution.
(v) For any other relief or reliefs, to which the
petitioner may be found entitled by this Hon’ble
Court.”
4. Mr. Prakash Sahay, learned counsel for the
petitioner(s) submits that he would not press the prayer no. (iv)
under paragraph ‘1’ of the writ application. Identical prayer
made in CWJC No. 11182 of 2021 is not pressed.
5. In that view of the matter, the issue with regard to
Rule 37BA of the Income Tax Rules which has been brought in
the Statute Book by virtue of 6th Amendment Rules w.e.f.
01.04.2009 is not pressed. Hence, this Court has not gone into
that aspect of the matter.
6. The petitioner(s) are aggrieved by the orders as
contained in Annexure ’10’ and Annexure ‘8’ respectively in the
writ applications whereby and whereunder the competent
authority of the Department has exercised its power under
Section 154 read with section 143(1) of the Income Tax Act,
1961 (hereinafter referred to as “the Act of 1961”) and has been
pleased to hold and declare that in view of Section 199 of the
Act of 1961, the deduction of TDS made on payment and paid
to the Central Government by principal would be treated as
Patna High Court CWJC No.11182 of 2021(19) dt.23-01-2025
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income/receipt of the assessee company and the assessee was
liable to show these receipts as income/receipts in the return of
income filed for the given assessment year. It has been held that
the assessee has not shown/disclosed amount received from
principal under Section 194E in its hand. Since the assessee had
not shown the said amount of income, it has been held that the
assessee would not get credit of the entire TDS rather the credit
of TDS has to be restricted only in view of the provisions under
Section 199 of the Act of 1961 read with Rule 37BA of the
Income Tax Rules.
7. Ms. Archana Sinha, learned Senior Standing
Counsel for the Department of Income Tax has informed this
Court that the order as contained in Annexure ’10’ and
Annexure ‘8’ respectively in the two writ applications are
appealable orders under Section 246A of the Act of 1961 and
the petitioner(s) have got an equally efficacious remedy.
8. Mr. Prakash Sahay, learned counsel for the
petitioner(s) having understood that the remedy of appeal which
is available to the petitioner(s) is an equally efficacious remedy
submits that he may be permitted to withdraw these applications
with liberty to assail the impugned orders in both the writ
applications before the Appellate Authority in accordance with
Patna High Court CWJC No.11182 of 2021(19) dt.23-01-2025
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law.
9. Learned Senior Standing Counsel for the
Department of Income Tax has no objection to the same.
10. This Court allows learned counsel for the
petitioner(s) to withdraw both the writ applications with liberty
to prefer a duly constituted appeal before the Appellate
Authority within a period of thirty days from today.
11. Since the writ applications were filed on
06.07.2021 and 16.06.2021 respectively as per the date of
registration available on the record, we are of the considered
opinion that the period spent by the petitioner(s) before this
Court would be liable to be taken into consideration for
exclusion while counting the period of limitation.
12. Both the writ applications are disposed of
accordingly.
(Rajeev Ranjan Prasad, J)
( Ramesh Chand Malviya, J)
SUSHMA2/-
U
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