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International Seaport Dredging Private Limited, Represented by its Manager, Amedeo Peyron, Chennai v/s Deputy Commissioner of Income Tax, Chennnai

    W.P. No. 12959 of 2019 & W.M.P. No. 13111 of 2019
    Decided On, 30 August 2022
    At, High Court of Judicature at Madras
    By, THE HONOURABLE DR.(MRS.) JUSTICE ANITA SUMANTH
    For the Petitioner: N.V. Balaji, Advocate. For the Respondent: Hema Muralikrishnan, Senior Standing Counsel.


Judgment Text
(Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of certiorari calling for records pertaining to PAN:AABCI2286E dated March 26, 2019 under Section 201(1)/(1A) of the Income Tax Act for the assessment year 2012-13 on the file of the respondent.)

1. The petitioner challenges an order passed under Section 201(1) read with Section 201(1A) of the Income Tax Act, 1961 (in short ‘Act’) for assessment year 2012-13. The primary ground of challenge is that the impugned proceedings are barred by limitation and per contra, the respondent draws attention to the fact that the provisions of Section 201(1)/1A do not provide for any time limit for the passing of an assessment order in regard to payments effected to non-residents, as in the instance case.

2. The petitioner has, admittedly, remitted payments to several entities (15 in number) in financial year 2011-12 including one Baggerweken Decloedt En Zoon (BDZ, an entity which is tax resident of Belgium for hire of dredgers on bareboat charter basis. Detailed rival submissions of both learned counsel have been heard.

3. In the course of the hearing, reference was made to a similar order u/s 201(1)/(1A) that had been passed for the earlier assessment year, that is, AY 2011-12. W.P.Nos.10319 & 10320 of 2018 had been filed by the petitioner for AY 2011-12 challenging the aforesaid order that came to be disposed by this Court on 25.04.2018, directing the petitioner to treat the impugned order as show cause notice and file its objections before the Officer. The petitioner was also given liberty to raise the plea of limitation before the officer and the officer directed to consider the case of the petitioner in full both on the aspect of limitation as well as on merits and pass orders in accordance with law.

4. Parties also bring to my knowledge the fact that assessments on merits have been framed both in the hands of the petitioner as well as BDZ, that are stated to be pending in appeal before the appellate authorities. That apart, an order under Section 201(1)/(1A) has come to be passed by the Officer on 26.02.2020, pursuant to order dated 25.04.2018 of this Court, that is also stated to be pending in statutory appeal.

5. In such circumstances, the learned Standing Counsel has filed Memo dated 27.07.2022, to following effect:

It is submitted that in the case of the petitioner herein, for the assessment year 2011-12, pursuant to the order dt. 25.04.2018 in WP.Nos.10319 and 10320 of 2018, the respondent herein has passed order u/s. 201(1)/(1A) r.w.s. 260A of the Income Tax Act, 1961 dt. 26.02.2020 on the same facts and circumstances, holding that the petitioner herein is liable to remit TDS @ 40% on 25% of the remittances made to M/s.Baggerwekern Decloedt En zoon amongst other issues. It is further submitted that the petitioner herein has filed statutory appeal u/s.246A of the Income Tax Act, 1961 against the said order dt.26.02.2020.

6. A copy of order dated 26.02.2020 has also been placed on file that reveals that the petitioner has taken the ground of limitation therein as well and the same has been decided by the officer, albeit adverse to the assessee. In such circumstances, it would be appropriate that the petitioner be relegated to statutory remedy in the present case as well in the interests of uniformity and consistency in approach.

7. In fact, had the petitioner mentioned at the first instance, the factum of an order having been passed u/s 201(1)/(1A) for the earlier year and the challenge to same by way of statutory appeal, this order could have been passed even at that juncture, without this Court having had to proceed with detailed hearing on the merits, as has been done.

8. In fine, the petitioner is relegated to statutory remedy. An appeal as against the impugned order, if filed within a perio

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d of three weeks from today, will be taken on file by the respondent without reference to limitation but subject to all other statutory pre-conditions, if any. Let the appeal, if and when filed as aforesaid, be consolidated and heard along with the appeal already stated to be pending for the earlier year. 9. This writ petition is dismissed, though with liberty. No costs. Connected miscellaneous petition is closed.
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