wp-9931-2019 IN HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 9931 OF 2019 Quick Heal Technologies Ltd., Petitioner. v/s. Union of India & Others .. Respondents. Ms. Padmavati Patil i/b. CEN-EX Services, for Petitioner. Mr. Sham Walve with Mr. Pritish Chetterjee, for Respondents. CORAM: M.S.SANKLECHA & NITIN JAMDAR, JJ. DATE : 16th OCTOBER, 2019. P.C:- This Petition under Article 226 of Constitution of India, seeks following effective reliefs:- (a) that this Hon ble Court be pleased to hold that sale of Shrink- Wrapped-packaged software on CD/DVD is Sale of Goods not subjected to TDS U/Sec. 194J /194C of Income Tax Act; (b) that this Hon ble Court be pleased to direct Respondents No.2 (CBDT) to issue clarification as requested by Petitioner- Company that sale of Shrink-Wrapped-packaged Software on CD/DVD is sale of goods not subjected to TDS under Sections 194J/ 194C of Income Tax Act, 1961 and in spite of bringing to notice of all Income Tax Authorities below CBDT Petitioner approached CBDT (i.e. Respondents No.2.) on at least six occasions and in spite of pursing issue with Respondents No.2 i.e. CBDT, it failed to address issue as requested by Petitioner? 2 At hearing, Ms. Patil, learned Counsel appearing in support of Petition, states that, she is not pressing prayer clause (a). This is advisedly so as prayer seeks Advance Ruling by this Court that S.R.JOSHI 1 of 3 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 01/11/2019 09:29:49 ::: wp-9931-2019 no tax deduction at source under Section 194J/194C of Income Tax Act, 1961 (the Act) can be made in respect of Shrink-Wrapped-packaged sold by them. 3 So far as prayer clause (b) is concerned, Petitioner seeks direction that Central Board of Direct Tax (CBDT)should issue direction to Shrink-Wrapped-packaged software on CD/DVD, cannot be subjected to tax deduction at source under Sections 194J/194C of Act . In support of her aforesaid prayer, she relied upon Section119(1) of Act, which reads as under:- 119(1):- Board may, from time to time, issue such orders, instructions and directions to other income-tax authorities as it may deem fit for proper administration of this Act, and such authorities and all other persons employed in execution of this Act shall observe and follow such orders, instructions and directions of Board. Provided that no such orders, instructions or directions shall be issued - (a) so as to require any income tax authority to make particular assessment or to dispose of particular case in particular manner; or (b) so as to interfere with discretion of Commissioner (Appeals) in exercise of his appellate functions. 4 This prayer is in nature of mandamus to CBDT to deal with and dispose of Petitioner s application that it is not liable to suffer any tax deduction at source by its customers. Before any such directions can be issued, Petitioner has to establish his legal rights to such relief and legal duty on other party (to whom directions/ mandamus is sought) to perform/ do what is sought by Petitioner. In this case, obligation to deduct tax at source under Act is on Petitioner s customers under Section 194C/194J of Act. In all cases where it is of view that payment made is of nature specified S.R.JOSHI 2 of 3 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 01/11/2019 09:29:49 ::: wp-9931-2019 under Sections 194C/194J of Act, it is liable to deduct tax at source and pay it to Revenue. This non-deduction of tax by Petitioner s customers visits it with consequences under Section 201 of Act. Therefore, in such case, legal right if any is of customer who is required to deduct tax at source. In any case, there is no legal right in Petitioner and/or its customers to compel CBDT to give ruling on issue of tax deduction at source. 5 It is clear in terms of Section 119(1) of Act, there is no duty cast upon CBDT to issue clarification and decide matters which would be essentially in realm of adjudication before authorities under Act. CBDT would also be barred for issuing of instruction in respect of Petitioner s application b virtue of proviso (a) to Section 119(1) of Act. In view of above, writ of mandamus can not be issued, directing CBDT to consider and decide Petitioner s representation/ application. 6 In above circumstances, we decline to entertain this Petition. 7 Accordingly Writ Petition dismissed. (NITIN JAMDAR,J.) (M.S.SANKLECHA,J.) S.R.JOSHI 3 of 3 ::: Uploaded on - 18/10/2019 ::: Downloaded on - 01/11/2019 09:29:49 ::: Quick Heal Technologies Ltd. v. Union of India & Other