IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1845 OF 2019 Tata Communications Limited Petitioner V/s. Deputy Commissioner of Income Tax 1(3)(2) and Ors. .. Respondents. Mr. J.D. Mistri, Senior Advocate i/b. Mint and Conferers Petitioner. Mr. Suresh Kumar for Respondent Nos. 1 to 4. CORAM : M.S. SANKLECHA & NITIN JAMDAR, JJ. DATE : 16 SEPTEMBER 2019. P.C. :- Mr. Mistri, learned Senior Advocate seeks leave to amend Petition so as to annex communication dated 18 July 2019 addressed by office of Respondent No.3 to Assessing Officer Respondent No.1 with copy to Petitioner and also challenge same to extent it seeks to withhold refund consequent to revised return of income dated 27 March 2019. Leave as sought is granted. Amendment to be carried out forthwith 2 105. WP 1845.19.doc Re-verification is dispensed with. Amendment to be carried out on Respondent copy immediately. 2. This Petition under Article 226 of Constitution of India seeks : (a) direction to Respondent No.1 Deputy Commissioner of Income Tax to process Petitioner s revised return filed on 27 March 2019 for Assessment Year 2017-18 under Section 143(1) of Income Tax Act, 1961 (the Act) and grant consequent refund of Rs. 72.16 crores alongwith interest thereon; (b) quashing of notice dated 14 November 2018 issued by office of Principal Commissioner of Income Tax Respondent No.3 seeking to withhold refund due to Petitioner under Section 241A of Act for Assessment Year 2017-18 in respect of original return of income filed on 30 March 2017 by Petitioner; and (c) quashing of communication dated 18 July 2019 addressed by office of Respondent No.3 seeking to ::: Uploaded on - 18/09/2019 ::: Downloaded on - 19/09/2019 12:17:15 ::: 3 105. WP 1845.19.doc withhold refund due to Petitioner under Section 241A of Act for Assessment Year 2017-18 in respect of revised return of income filed on 27 March 2019 by Petitioner. 3. On 30 November 2017, Petitioner filed its return of Income for Assessment Year 2017-18 declaring total income of Rs.227/- crores and seeking refund of Rs.92.83 crores. This refund was due to Petitioner on return being processed under Section 143(1) of Act. In spite of Petitioner s requests/reminders to Respondent No.1 - Assessing Officer. same was not processed. 4. Despite not having processed return of income under Section 143(1) of Act, on 14 November 2018 notice was issued by office of Respondent No.3 Principal Commissioner of Income Tax. above impugned notice was for hearing Petitioner on proposed action of Respondent No.3 to withhold refund relatable to Assessment Year 2017-18 in view of Section 241A of Act. 5. Petitioner protested by various representations to Respondents that Section 241A of Act could only be invoked, after refund due is determined under Section 143(1) of ::: Uploaded on - 18/09/2019 ::: Downloaded on - 19/09/2019 12:17:15 ::: 4 105. WP 1845.19.doc Act. However, that till date no order has yet been passed by Respondents on impugned notice dated 14 March 2018. 6. On 27 March 2019 Petitioner filed revised return of income for Assessment Year 2017-18. It revised its income to Rs.233 crores and sought refund of Rs.72.16 crores. This revision of income was on account of retrospective amendment to Section 43AA of Act and certain other claims. 7. This revised return of income filed on 27 March 2019, has not yet been processed under Section 143(1) of Act. This inspite of numerous representations on behalf of Petitioner. Thus leading to filing of this Petition. 8. Respondent No.1 Assessing Officer has filed affidavit in reply dated 5 August 2019 to this Petition. In its reply it is stated that on filing of revised return of income on 27 March 2019, original return of income filed on 30 November 2017 stands abandoned, thus, Revenue would now only deal with revised return of income filed on 27 March 2019 for subject Assessment Year 2017-18. affidavit in reply further annexes copy of communication dated 18 July 2019 addressed by Principal Commissioner of Income Tax Respondent No.3 to Assessing Officer to withhold refund due for Assessment Year 2017-18 under Section 241A of Act. ::: Uploaded on - 18/09/2019 ::: Downloaded on - 19/09/2019 12:17:15 ::: 5 105. WP 1845.19.doc 9. Before dealing with issue arising in this case, it would be necessary to reproduce Section 241A of Act, introduced w.e.f. 1 April 2017. It reads as under :- "241A. Withholding of refund in certain cases. For every assessment year commencing on or after 1st day of April, 2017, where refund of any amount becomes due to assessee under provisions of sub- section (1) of section 143 and Assessing Officer is of opinion, having regard to fact that notice has been issued under sub-section (2) of section 143 in respect of such return, that grant of refund is likely to adversely affect revenue, he may, for reasons to be recorded in writing and with previous approval of Principal Commissioner or Commissioner, as case may be, withhold refund up to date on which assessment is made.". Section 241A of Act empowers Assessing Officer to withhold refund which has become due for reasons stated therein, this only after determining refund due under Section 143(1) of Act. It is undisputed position before us that neither regular return of income dated 30 November 2017 nor revised return of income dated 27 March 2019 for subject Assessment Year has been processed under Section 143(1) of Act till date. Consequently, occasion to withhold any refund under Section 241A of Act at this stage does not arise. Therefore, on admitted facts application/invocation of Section 241A of Act is premature. ::: Uploaded on - 18/09/2019 ::: Downloaded on - 19/09/2019 12:17:15 ::: 6 105. WP 1845.19.doc 10. In view of admitted position that neither original or revised return of income for Assessment Year 2017-18 has been processed under Section 143(1) of Act, invoking of Section 241A of Act would be without authority of law. Thus, impugned show cause notice dated 14 November 2018 is quashed and set aside not only on above ground but also as affidavit in reply states that original return of income stands abandoned, on filing of revised return of income. impugned notice is in pursuance of original return of income filed on 30 November 20917. Similarly, communication dated 18 July 2019 addressed by Office of Respondent No.3 Principal Commissioner of Income Tax to Deputy Commissioner of Income Tax - Assessing Officer approving to proposal to withhold refund due for Assessment Year 2017-18 under Section 143(1) of Act is also without jurisdiction. This as refund due has admittedly not been determined under Section 143(1) of Act. Therefore, quashed and set aside. 11. Mr. Suresh Kumar, learned Counsel appearing for Respondent Revenue on instructions of Mr. Rahul Singhania Respondent No.1 Assessing Officer states that revised return of income filed on 27 March 2019 would be processed under Section 143(1) of Act within period of eight weeks from today. statement is accepted. 7 105. WP 1845.19.doc 12. Petition is disposed of in above terms. No order as to costs. NITIN JAMDAR, J. M. S. SANKLECHA, J Tata Communications Limited v. Deputy Commissioner of Income-tax1(3)(2) and Or