(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) The petitioner has challenged an order dated 28.9.2012 passed by the respondent under Section 195(2) of the Income Tax Act, 1961. Previously this petition was heard for some time. It was lastly adjourned at the request of learned counsel for the Revenue to take further instructions.
Today, when the matter was taken up, he placed on record a communication dated 4.2.2013 issued by the respondent conveying to the petitioner that the order dated 28.9.2012 has been withdrawn for passing a fresh order in accordance with law.
3. In that view of the matter, in our opinion, the petition has become infructuous since the order impugned no longer survives. Counsel for the petitioner, however, raises a strong objection to the methodology adopted by the respondent. He submitted that the petitioner had approached the Court against the order passed by the respondent under Section 195(2) of the Act. On an application made by the petitioner inviting an order from the Assessing Officer to determine appropriate proportion of such sum so chargeable as a commission to a non-resident, on which tax has to be deducted, stand of the petitioner was that no tax was deductible at all. At this stage, now to withdraw the impugned order for passing a fresh order is wholly impermissible.
4. It is always open for the petitioner to challenge the fresh order/communication issued by the respondent. If and when such challenge is brought to the Court, the same will be examined. At this stage, we are not changing our opinion that the petition has become infructuous. For clarification, however, we should not be seen to have either authorized passing of such an order or having expressed any opinion on the legality thereof.
With above observations, petition is disposed of. Notice is discharged.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) SUDHIR of 2