Make Mytrip (India) Private Limited vs Assistant Commissioner Of Income Tax, Circle-75(1), Delhi & Anr.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on : 02.12.2025
Judgment delivered on : 16.03.2026
Judgment uploaded on : As per Digital Signature~

+ W.P.(C) 11956/2025 & CM APPL. 65195/2025

MAKE MYTRIP (INDIA) PRIVATE LIMITED .....Petitioner

versus

ASSISTANT COMMISSIONER OF INCOME TAX,
CIRCLE-75(1), DELHI & ANR. .....Respondents

Advocates who appeared in this case

For the petitioner : Mr. Salil Kapoor, Ms. Soumya Singh,
Mr. Sumit Lalchandani and Ms Ananya
Kapoor, Advocates

For the Respondents : Mr. Siddhartha Sinha, SSC.

CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE VINOD KUMAR


JUDGMENT
V. KAMESWAR RAO, J.
1. The present petition has been filed challenging the order dated
17.07.2025 passed by the respondent no. 2 i.e., Deputy Commissioner of
Income Tax (TDS), Gurugram for Financial Year (“F.Y.”) 2025-26, relevant
to Assessment Year (“A.Y.”) 2026-27, whereby the respondent no.2 has
rejected an application under Section 197 of the Income Tax Act, 1961 (“the

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Act”) dated 19.05.2025 seeking a „NIL Withholding Certificate‟ under
Section 197 of the Act or without prejudice, a certificate at the rate of
0.30%, consistent with the certificates which were issued by the respondent
no.2 for three preceding FYs.
BRIEF FACTS OF THE CASE
2. The petitioner is a company incorporated in India on April 13, 2000,
under the Companies Act, 1956, and is engaged in the business of selling
travel products and solutions. The petitioner owns a web-based travel
services portal that can be accessed freely through the internet (through URL
- www.makemytrip.com) and primarily focuses on promoting air tickets,
hotel bookings and tours & packages about tourist destinations. The
petitioner is regularly assessed to tax by the Deputy Commissioner of
Income Tax, Circle 16(1), Delhi, for more than a decade in respect of its
Permanent Account Number (PAN) – AADCM5146R, and by the Assistant
Commissioner of Income Tax, Circle-75(1), Delhi-respondent no. 1 in
relation to its Tax Deduction and Collection Account Number (TAN) –
DELM09144C.
3. The petitioner has been filing applications for NIL Withholding Tax
Certificate and the respondent no. 1 has been issuing such certificates for
years, directing TDS to be deducted at a lower rate, as under :-
Date of
Certificate
A.Y. Rate of
Withholding tax
01.06.2024 2025-26 0.30%
09.06.2023 2024-25 0.30%
05.08.2022 2023-24 0.30%
05.05.2021 2022-23 0.10%

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29.06.2020 2021-22 1.50%
29.05.2019 2020-21 1%, 1.50%, 4%
20.07.2018 2019-20 1%, 1.50%, 3%
15.05.2017 2018-19 0.75%, 1.5%
4. On 19.05.2025, the petitioner filed the application before the
respondent no.1 for „NIL Withholding Tax Certificate‟ for F.Y. 2025-26
relevant to A.Y. 2026-27 or without prejudice, lower withholding certificate
@ 0.30%, in view of the certificate dated 01.06.2024. The case of the
petitioner was, during the year under consideration, the petitioner has
substantial tax losses, which were brought forward from past AYs available
for set-off, and therefore, the taxable business income of the petitioner for
the FY 2025-26 shall be „Nil‟ (after set-off of brought forward losses,
including unabsorbed depreciation).
5. Pursuant to the filing of the application, the respondents sought
clarifications from the petitioner. Amongst those clarifications, the
respondents sought a specific clarification regarding outstanding tax demand
of ₹1,50,65,760/- reflecting against the PAN and ₹11,660/- against the TAN
of the petitioner, which was raised on the portal. The petitioner filed a reply.
6. In response to the amount reflecting against the PAN, the petitioner
submitted that, it is not recoverable on account of pending rectification and
an appeal is pending before the Appellate Authorities. Regarding the
demand against the TAN of the petitioner, the petitioner submitted that the
same was on account of a technical error, which is being corrected through
revision of TDS and that the demand will not survive post the revision of
TDS return. In the said response, the petitioner also filed copies of
certificates issued for A.Ys. 2025-26, 2024-25, 2023-24, 2022-23 and 2021-

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22, which were granted at lower withholding rates of 0.30%, 0.10% and
1.50%.
7. On 17.07.2025, the respondent no. 2 passed the impugned order
rejecting the application of the petitioner by holding that, “ there are demand
of ₹ 23,80,63,189/-, pending against the TAN and no stay has been granted
against the demand ”.
8. Aggrieved by the impugned order dated 17.07.2025, the petitioner has
filed this petition.
HE ASE F HE PETITIONER
T C O T

9. The case of the petitioner is that the respondent no. 2 has erred in
rejecting the application, even though in identical circumstances of
continuous business losses, the respondent no. 1 had issued certificates for
three preceding F.Y.s at the rate of 0.30%. In the absence of any change in
the facts and circumstances of the case, the respondents could not have taken
a contrary view from that of the three immediately preceding FYs. It is also
the case of the petitioner that, in view of the substantial tax losses brought
forward from the past AYs available for set-off, the total taxable business
income for the year under consideration, i.e., FY 2025-26 shall be „NIL‟,
which was identical to the financial position of the petitioner in the earlier
FYs.
10. It is the case of the petitioner that in the demand appearing on the
TAN of the petitioner, a substantial portion aggregating to ₹23,50,21,249/-
pertains to previous 4 AYs and these demands pertain to similar issues and
were raised on account of alleged short deduction of tax at source on

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payments made to; (a) Google India for online advertisement; (b) Khajrana
and other parties for Common Area Maintenance Charges; and (c) HP India
for Annual Maintenance Charges (only for AYs 2018-19 and 2019-20).
Against these demands, the petitioner has filed rectification applications
followed by an appeal before the National Faceless Appeal Centre.
11. Mr. Salil Kapoor, the learned counsel appearing for the petitioner,
submitted that the Revenue having granted certificates for three preceding
FYs at the lower rate of 0.30% in similar situations, ought not to have
resiled from that position without giving any justification for the same. He
also submitted that the rule of consistency in income tax proceedings cannot
be ignored, and that, if a view has been taken in the proceedings for earlier
years, then the Revenue cannot take a different view in the subsequent year
unless there is some rational and reasonable cause for doing so.
12. In support of his submissions, he has placed reliance on the following
judgments;-
i) Radhasoami Satsang v. CIT (1992) 193 ITR 321 (SC);
ii) Commissioner of Income Tax v. M/s Excel Industries
2014 13 SCC 459;
iii) Lufthansa Cargo AG v. DCIT: W.P.(C) 91361/2019;
iv) Commissioner of Income Tax v. ARJ Security Printers,
264 ITR 276;
v) Commissioner of Income Tax v. Neo Poly Pack P. Ltd.,
245 ITR 492
vi) Commissioner of Income Tax v. Dalmia Promoters
Developers Pvt. Ltd., 2006 SCC OnLine Del 83.

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13. He submitted that the respondent no.2 issued a query on 28.05.2025
with respect to the TAN demand amounting to ₹11,660/- pertaining to the
first quarter of TDS return for FY 2024-25 and it was duly clarified by the
petitioner in its submission dated 03.06.2025; that, it is on account of a
technical error encountered during the filing of TDS return, which would be
rectified post revision of TDS return. Apart from the said TAN demand, the
respondent no.2 had not sought clarification regarding any other pending
TAN demand of the petitioner. However, in the impugned order, the
respondent no.2 has resorted to pendency of the demand of ₹23,80,63,189/-
against the petitioner‟s TAN, for rejecting its application.
14. Mr. Kapoor submitted that the demand amounting to ₹ 23,80,63,189/-
against the petitioner‟s TAN could not have been the reason for rejecting the
application without seeking clarification from the petitioner and even
otherwise, the said demands are not recoverable. The demand raised
pursuant to orders passed under Section 201 of the Act by the TDS Officer,
is in appeal. During the pendency of the appeal, the petitioner filed
rectification applications under Section 154 of the Act as well as
applications seeking stay of recovery of demand, which are pending
consideration.
15. He submitted that the said demands are not sustainable, as the basis
adopted by respondent no.1 during the verification proceedings under
Section 201 of the Act is fundamentally flawed. The respondent no. 1 has
raised these demands by placing reliance on the decision in Google India
(P) Ltd. v. Joint Director of Income-tax (International Taxation), (2018)
194 TTJ 385 by the Bangalore Bench of the Tribunal. However, the said

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decision has been overturned by the Karnataka High Court in the case of
Google India (P.) Ltd. v. Commissioner of Income-tax, International
Taxation, Bengaluru, (2021) 435 ITR 284 (Karnataka). In support of his
submission, Mr. Kapoor has relied upon the following judgments:-
i) Sultan Leather Finishers (P.) Ltd. v. Assistant
Commissioner of Income-Tax, [1991] 191 ITR 179
(All.);

ii) Mathew Scaria v. Deputy Commissioner of State Tax &
Ors, [WP(C) no. 33099 Of 2023] (Kerala High Court);
iii) Purnima Das v. Union of India, [2010] 329 ITR 278
(Calcutta);
iv) M/S Ruchi Infrastructure Ltd. v. State of Gujarat,
[R/Special Civil Application no. 398/2021] (Gujarat
High Court);
v) UTI Mutual Fund v. Income-tax Officer, 19(3)(2)
[2012]345 ITR 71 (Bombay).
16. He stated that the impugned order rejecting the application is without
considering the fact that the petitioner is entitled to tax refunds of around
Rs.84 crores for various AYs from the Revenue. The petitioner has been
undertaking business for more than a decade with operational revenues of
Rs.5,23,104 lakhs, Rs.3,96,253 lakhs and Rs.1,80,487 lakhs in FYs 2023-24,
2022-23 and 2021-22, respectively, and has been duly deducting and
depositing TDS with the respondents on payments made to various vendors.
17. He submitted that, the rejection of the application is not in terms of
the parameters laid down under Rule 28AA of the Income Tax Rules, 1962
(„Rules‟). The respondent no.2 has failed to appreciate that the outstanding
tax liability for earlier years, are not recoverable. He also submitted that the

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respondent no. 2 has also failed to appreciate that all the four parameters
mentioned in Rule 28AA(2) are fulfilled in the case of the petitioner.
18. Mr. Kapoor submitted that the action of the respondents strikes at the
core constitutional principles of certainty, consistency and non-arbitrariness
in tax administration. In this regard, he has relied upon the judgment of the
Supreme Court in Principal Commissioner of Income Tax v. Maruti
Suzuki lndia Ltd., [2019] 416 ITR 613 (SC) wherein it was held that,
"Business decisions are made in the expectation of consistency, uniformity
and certainty. To detract from those principles is neither expedient nor
desirable" . He has also placed reliance on the decision of the Supreme Court
in South Indian Bank Ltd. v. CIT, [2021] 130 taxmann.com 178 (SC) .
19. He submitted that, for last eight years, the petitioner has been granted
certificates under Section 197 of the Act on an unchanged factual profile,
continuous losses, and identical business circumstances. He also submitted
that there has been no alteration in the petitioner's financial position, tax
parameters, or in the statutory framework governing issuance of lower
deduction certificates. He also submitted that the respondent no. 2 has
withholding rejected the petitioner's application through a one-line order
(the impugned order) without any reasoning, application of mind or
justification for departing from the long-standing consistent view adopted by
the respondents. He also submitted that, any deviation from a settled and
consistently applied position, without any change in facts, law, or revenue
exposure, directly contravenes the mandate of the Supreme Court in Maruti
Suzuki (supra) and South Indian Bank (supra) .

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20. Mr. Kapoor submitted that outstanding demand is not a valid ground
for rejecting an application under Section 197 of the Act. He submitted that
the Bombay High Court in Tata Teleservices (Maharashtra) Ltd. v. DCIT
(TDS), [2018] 402 ITR 384 (Bom), has held that:
"Neither Section I97 of the Act nor Rule 28AA provides that
no certificate of nil/lower rate of withholding tax can be
granted if any demand, howsoever minuscule, is
outstanding. .. The authority is required to determine the
existing/estimated liability by considering all aspects,
including the estimated tax payable for the relevant year
and the existing liability. This necessarily includes taking
into account demands likely to be upheld in appellate
proceedings."

21. In support of this proposition of law, he has also relied upon the
following judgments:-
i) Infrastructure Development Authority v. The Assistant
Commissioner Of Income Tax, (Civil Writ Jurisdiction
Case no. 9716/2024) [Patna High Court]
ii) Jones Lng Lasalle Property Consultants (India) (P.)
Ltd. v. Deputy Commissioner of lncome-tax, [2022] 447
ITR 40 (Delhi).
22. According to him, the respondents were required to examine the
petitioner's real tax posture, including; (i) continuous losses, (ii) NIL taxable
income, (iii) substantial pending refunds, and (iv) the fact that the alleged
outstanding demands, which are wholly disputed, partly rectified, and sub-
judice before Appellate Authorities.

23. He submitted that the respondents instead of carrying out this
statutory evaluation mandated under Rule 28AA of the Rules, had rejected
the application solely on the basis of demands raised, which are not

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recoverable in light of the petitioner's large refund position. He also
submitted that the respondents failed to appreciate that, in view of the fact
that the petitioner's taxable business income for the year under consideration
would be NIL, and in the absence of lower withholding certificate, the
petitioner's substantial working capital would be blocked.
24. It is the submission of Mr. Kapoor that the substantial reduction in
outstanding demand, as acknowledged by the Revenue, renders the basis of
rejection unsustainable, as subsequent to the filing of this writ petition, the
TDS Officer has passed orders under Section 154 read with Section 201 (1) /
I(A) for FYs 2017-18 and 2018-19, wherein, it has substantially reduced the
very demands that formed the sole basis of rejection.
25. He submitted that the demand in the impugned order, which is the
ground for denial of the certificate, now stands reduced to ₹ 14.08 crore, as
evidenced by the rectification orders and the factual matrix asserted in the
application now stands unequivocally accepted by the respondents in their
counter-affidavit. Each of these demands is presently sub judice in appeal,
pending rectification, or covered by stay applications, many of which
continue to remain unattended due to inaction on part of the Jurisdictional
Assessing Officer.
26. He submitted that the respondents have not disputed that the
„outstanding demands‟ in the impugned order are neither final nor
crystallised. In such circumstances, there exists no confirmed or enforceable
liability that could constitute a legitimate basis to deny the petitioner‟s
equitable relief under Section 197 of the Act. On the contrary, the petitioner
has already filed detailed rectification and stay applications in respect of the

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purported demands. He also submitted that the petitioner has undertaken a
comprehensive reconciliation of its outstanding demand and refund is due as
on 07.10.2025. This reconciliation demonstrates that, after giving effect to
the above rectification orders, the total outstanding demand now appearing
in the system of the Revenue aggregates to ₹14,08,03,300/-, most of which
has been incorrectly appearing against the petitioner and relates to AYs,
which are pending rectification, appeal, or in stay proceedings.
27. He submitted that, without prejudice, the petitioner has voluntarily
offered that, if so directed, the Revenue may adjust 20% of the reduced
disputed demand against the pending refunds of ₹ 84.10 crores, which are
due to the petitioner and continued to remain pending for release. These
refunds arise pursuant to various assessment and rectification proceedings
under Sections 143(1), 143(3) and 154 of the Act and the Revenue is in a net
payable position to the petitioner/ applicant. In the alternative, the petitioner
has undertaken to deposit the said amount within seven days, entirely in line
with the CBDT's Instruction in Circular no. F. no. 404/72/93- ITCC dated
29.02.2016. This assurance has been tendered to demonstrate the petitioner's
bona fides and to facilitate an expeditious issuance of a certificate at NIL or
at the rate of 0.30%, within a period of two weeks.
28. One of submissions of Mr. Kapoor is that petitioner‟s prior
applications were allowed by the Revenue on similar demand/scenarios. In
this regard, he has reproduced a chart, as under:-

Demand at the time of filing for lower withholding
certificate


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Financial Year (FY) Demand (in ₹)
Revision FY 2024-25 32,643,131
FY 2024-25 46,546,401
FY 2023-24 35,407,451
FY 2022-23 34,958,881

The initial demand as alleged by the Revenue in the impugned order
has been reduced and the correct aggregate demand can only be
₹12,81,16,273/- and not the amount as alleged in the impugned order or
rectification order dated 22.08.2025.
29. He has relied upon the judgment of this Court in Manpower Group
Services India (P.) Ltd. v. CIT (TDS)-1, New Delhi, [2021] 123
taxmann.com 290 (Delhi) (W.P.(C) 5865/2020), decided on 21.12.2020 , to
contend that this Court has categorically held that, an order under Section
197 of the Act, must be reasoned and cannot arbitrarily fix rates without
justification. Any such order violates the principles of natural justice and is
liable to be quashed.
30. He submitted that, in this case, the respondents have completely
ignored Rule 28AA of the Rules, which prescribes the formula for
determining the appropriate rate of TDS based on estimated tax liability and
existing demand. The impugned order does not even refer to Rule 28AA, let
alone apply its formula, rendering the decision arbitrary and contrary to
statutory mandate. He also submitted that the present petition should also

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take into account the pending refunds and brought-forward losses, as these
factors directly impact the estimated tax liability and revenue risk.
31. On the issue of territorial jurisdiction, he submitted that the petitioner
is assessed to tax in Delhi, before respondent no. 1 i.e. the Assistant
Commissioner of Income Tax, Circle 75(1), Delhi. The respondent no. 1 has
been consistently exercising jurisdiction over the petitioner for several years
and even after filing of the present petition, respondent no. 1 is exercising
the authority for all relevant purposes, including issuance of lower deduction
certificates and the rectification orders, for the preceding AYs.
32. He submitted that, for several years, the petitioner has filed multiple
tax and non-tax writ petitions before this Court, all of which have been
entertained and adjudicated without jurisdictional objection, including M/s
Make My Trip India Pvt. Ltd. v. Deputy Commissioner of Income-tax,
Circle 16-1 & Anr., W.P.(C) 5168/2021 . In addition, income tax appeals
filed by the Revenue itself in respect of the petitioner have been adjudicated
by this Court in Pr. CIT-6 v. Make My Trip India Pvt. Ltd. (2019) (Del HC)
- ITA 136/2019 . He submitted that the respondents cannot now selectively
dispute the jurisdiction of this Court while having repeatedly invoked and
accepted the same forum in earlier proceedings.
33. He submitted that the argument of the Revenue would lead to an
untenable and jurisdictionally fragmented regime, where the assessee would
have to seek remedies before two different High Courts for intertwined and
overlapping tax issues which is contrary to the principles of judicial
discipline and certainty. He also submitted, it would render the ongoing
assessments and proceedings before respondent no. 1 vulnerable, and if this

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Court is held not to have jurisdiction, the foundational authority of
respondent no. 1, which is also located in Delhi comes into question.
Therefore, the Revenue cannot simultaneously maintain that the respondent
no. 1 has jurisdiction to issue notices and make assessments, but this Court
lacks jurisdiction to examine the legality of the same.
34. He submitted that the respondents‟ reliance on the petitioner‟s
Gurgaon address for filing Form 13 is a procedural requirement and cannot
override the substantive fact that the adverse financial consequences occur
within this Court's jurisdiction and does not amount to "approbation and
reprobation" as alleged by the Revenue. The petitioner has at all times
maintained, and the Revenue has at all times acted upon, the position that
the assessment and TDS jurisdiction lies with respondent no. 1 in Delhi. As
late as October and November 2025, the petitioner has received fresh notices
under Section 201 of the Act for FYs 2019-20 and 2021-22 from respondent
no. 1. The petitioner has made full and candid disclosure before this Court
regarding the Gurgaon address mentioned in Form 13; hence, there is no
suppression of any material fact.
35. Mr. Kapoor submitted that the Revenue's objection on the ground that
the petitioner ought to have availed the remedy of revision under Section
264 of the Act is wholly untenable and contrary to the settled legal position
of this Court in the case of ManpowerGroup Services India (P.) Ltd.
(supra) which held that, a revision under Section 264 of the Act is not an
efficacious remedy where the order under Section 197 of the Act is passed
with prior approval of the Commissioner, as the revisional authority cannot

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sit in judgment over its own administrative approval amounting to an appeal
from " Caesar to Caesar ."
36. In support of his submission that, even if the remedy under Section
264 of the Act is theoretically available, such remedy is neither efficacious
nor adequate in law for assailing an order passed under Section 197 of the
Act. He has relied upon the following judgments:-

i) SFDC Ireland Ltd. v. CIT, [2024] 465 /TR 471 (Del.);
ii) Serco BPO (P.) Ltd. v. ACIT, [2012] 25 taxmann.com 4
(P&H)

37. On the issue of the Revenue's reliance on the judgment of this Court
in National Petroleum Construction Co. v. DCIT, (421 ITR 24), Mr.
Kapoor submitted that the said judgment was in the context of „Permanent
Establishment‟ (PE) determination, where this Court found that the assessee
had taken inconsistent positions in earlier proceedings and before arbitration
tribunals, resulting in highly fact-specific observations that turned
exclusively upon the assessee's contradictory stand. When carried in an
appeal (Civil Appeal no. 4964 of 2022) , the Supreme Court delivered two
separate and conflicting opinions and the Supreme Court expressly directed
that the matter to be placed before a larger Bench. Moreover, in that case,
the High Court was confronted with questions relating to (i) PE attribution,
(ii) characterization of income, (iii) inconsistent stand by the assessee, and
(iv) re-appreciation of treaty provisions, all of which required a fact
intensive evaluation wholly absent here.

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38. He submitted that, the present matter is concerned with a mechanical
one-line rejection of a Section 197 application, a jurisdiction that is entirely
administrative, governed strictly by Rule 28AA, and a reasoned
consideration of (a) brought-forward losses, (b) estimated tax liability, (c)
past certificates, and (d) pending refunds. None of these statutory
obligations were discharged by the Revenue in National Petroleum (supra)
and it neither construed Section 197 or the Act nor decided whether a
certificate can be denied on the basis of alleged outstanding demand. That
issue stands governed by a completely different line of authorities including
Tata Teleservices (supra), Serco BPO (supra), Jones Lang Lasalle (supra),
Manpower Group (supra) and SFDC Ireland (supra), all of which directly
support the case of the petitioner. In support of his submissions Mr Kapoor
has relied upon the following decisions:-
i) Bently Nevada LLC v. ITO Ward 1(1)(2), International
Taxation, [2019] 267 Taxman 333 (Delhi) ;
ii) R. Srinvasan v. ACIT/DCIT, Central Circle-I, [2014]
360 ITR 471 (Madras);
39. He seeks prayers as made in the petition.
T HE C ASE O F T HE R ESPONDENTS
40. Mr. Siddhartha Sinha, learned Senior Standing Counsel for the
Respondents/Revenue submitted that the survey operation under Section
133A(2A) of the Act was conducted on 17.12.2019 at the business premises
of Make My Trip (India) Pvt. Ltd., Gurugram, to verify compliance with
TDS provisions. Thereafter, a series of notices were issued under Section

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201(1)/(1A) by the TDS Circle, Delhi, in respect of FYs 2017-18 and 2018-
19. Accordingly, orders were passed raising demands qua the Assessee.
41. On 25.02.2025, orders were passed under Section 201(1)/(1A) for
FYs 2017-18 and 2018-19, raising demands of ₹ 9.89 crore and ₹ 10.61
crore respectively.
42. On 23.05.2025, the petitioner filed online application in Form no. 13
under Section 197 of the Act seeking a certificate for Nil/Lower Deduction
of Tax for FY 2025-26. Thereafter, the Revenue/ TDS Circle, Gurgaon,
sought clarification from the petitioner including the status of the
outstanding demand.
43. He submitted that the petitioner in its reply submitted that the demand
of ₹ 71,58,029/- for AY 2018-19 and ₹3,71,098/- for AY 2019-20 were
pending rectification by the AO. But in support of its claim, no documentary
evidence was provided by the petitioner. The petitioner simply uploaded the
response against the demand on e-filing portal wherein it had disagreed with
outstanding demands.
44. He submitted that, as per Annexure 12 submitted by the petitioner, the
demand of ₹ 71,58,029/-for AY 2018 -19 and ₹ 3,71,098/- for AY 2019-20
were correct and collectible in nature. Against the demand of ₹ 56,33,776/-
for AY 2021-22, the petitioner submitted that the demand was raised against
the penalty order under Section 271 G of the Act dated 23.04.2024 for AY
2021-22, which is pending before the CIT(A) for adjudication and no stay
has been granted by the Appellate Authority. Therefore, as per Section 226
of the Act, the said demand is collective in nature. Apart from the said

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demand, there is an outstanding demand of ₹5,91,27,449/- against the PAN,
which is collectible in nature, on response submitted by the AO. As
substantial outstanding demands exist against the petitioner‟s PAN and
associated TANs, which have been duly verified by the Jurisdictional
Assessing Officer, it is found to be correct and collectible.
45. He clarified that, on 22.08.2025, rectification orders were issued
under Section 154 read with Section 201(1)/(1A) of the Act for FY 2017-18
and FY 2018-19, reducing the demand from ₹ 20.5 crore to ₹ 9.11 crore. He
also submitted that the petitioner has not obtained a stay order from the
Appellate Authority or from the AO under Section 220(6) for the demand
raised under Section 271 G for AY 2021-22. Similarly, significant demand
is outstanding and has been confirmed by the AO and the same is reflected
as outstanding against TANs linked to the petitioner.
46. He submitted that, as per Rule 28AA of the Rules, the presence of
substantial outstanding tax liabilities, including TDS defaults, materially
impacts the consideration for issuance of certificate under Section 197 of the
Act. These defaults indicate non-compliance with the provisions of Chapter
XVII-8 of the Act and adversely affect the petitioner‟s tax compliance
profile.
47. He contended that, considering the petitioner did not meet the pre-
conditions of financial and tax compliance required for issuance of a
certificate for lower or nil deduction of tax at source under Section 197 of
the Act read with Rule 28AA, i.e. the existing liabilities referred to sub rule
(2)(iii), the respondent no.2 has rightly passed the impugned order.

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48. He submitted that, in Form no. 13, the petitioner has mentioned its
address as Gurgaon, Haryana, its corporate address in the application which
was consequently processed by the respondent no. 2, Deputy Commissioner
of Income Tax, TDS Circle, Gurgaon, who passed the impugned order.
Since the cause of action, i.e., the rejection of the application, has arisen in
Gurgaon, the present petition falls within the territorial jurisdiction of the
Punjab and Haryana High Court.
49. He submitted that, on a bare perusal of the prayers made by the
petitioner in the present writ petition, it is apparent that the petitioner is
seeking redressal solely against the action of the Deputy Commissioner of
Income Tax (TDS), Gurgaon. Accordingly, the petitioner ought to have
approached the Punjab and Haryana High Court. The petitioner made a
passing reference of the Form no. 13 to justify the maintainability of the
Writ Petition before this Court. He also submitted that the petitioner on his
own volition and with a conscious choice had applied to the Gurgaon
Commissionerate for grant of the TDS Certificate. There is no role of the
Jurisdictional Assessing Officer as such and the petition ought to be
dismissed at the threshold on grounds of maintainability for want of
territorial jurisdiction.
50. Mr. Sinha places reliance on the decision of this Court in SIS Live v.
ITO, (2011) 333 ITR 13, to contend that the submission of the petitioner
that the jurisdiction rests with this Court by relying upon the judgment of
Manpowergroup Services India Pvt. Ltd (supra) , is erroneous as the said
judgment is based on a different set of facts. Therein, this Court was dealing
with the grant of certificate under Section 197 of the Act, at a rate higher

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than the rate requested by the assessee. Since, the revenue foregone was
more than the rate permissible by the Range Head, the approval was taken
from the Commissioner as per the CBDT Instruction no. 08/2018. Further,
this Court observed that the Commissioner of Income Tax can entertain a
revision petition under Section 264 of the Act only when the order, which is
the subject matter of revision, is passed by an authority subordinate to him.
In the present case, there is an upfront rejection of the application. In such a
scenario, it is apparent that there was no revenue foregone and as such no
approval was required to be taken from the Commissioner for passing such
order.
51. Mr. Sinha submitted that the petitioner has conveniently not attached
the Form No.13 that had granted jurisdiction to the Deputy Commissioner of
Income Tax, TDS Circle, Gurgaon. He also submitted that, it is a settled
principle of law that, a writ petition under Article 226 of the Constitution is
a discretionary remedy and a petitioner who suppresses material facts or
makes misrepresentations forfeits the right to be heard, as held in the
judgment of the Supreme Court in Ramjas Foundation v. Union of India,.
(2010) 14 SCC 38 and Dalip Singh v. State of U.P, (2010) 2 SCC 114.
52. He submitted that, a perusal of the documents and the chain of events
would indicate that the approval of the order rejecting the application was
principally provided by the Range Head in terms of the CBDT Instruction
no. 08/2018, and as such no approval was taken from the Commissioner for
passing such order. The procedure has also been streamlined in the CBDT
Notification no. 8 of 2018 dated 31.12.2018, wherein it is observed that:

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“6.2.2 If required, the Range Head may seek clarification from
the AO and after submission of clarification by the AO through
the AO Portal, the Range Head shall take a final decision on
the application. All these steps shall be carried out on AO
Portal in electronic mode under respective logins of Range
Head and AO.
6.2.3 After a decision on the application has been taken by the
Range Head, if the revenue foregone is within the powers
conferred upon the Range Head (as per CBDTs Instructions
on the subject) to accord administrative approval, the
application will be marked back electronically on AO Portal to
the Assessing Officer for issuance/rejection of the certificate
under section 197(1)/206C(9) of the Income-tax Act, 1961. The
procedure for issuance of certificate is prescribed below in
paragraph 7. However, if the revenue foregone is within the
powers conferred upon the CIT (as per CBDTs Instructions on
the subject) to accord administrative approval, the application
shall be forwarded to the CIT for a decision in the matter.”
53. In support of his submission, Mr. Sinha has relied upon the judgments
in Coforge Solutions (P.) Ltd. v. Deputy Commissioner of Income-tax
(TDS), [2024] 158 taxmann.com 160 (Punjab & Haryana)[20-07-2023],
OPJ Trading (P.) Ltd. v. Income-tax Officer, TDS-2, [2018] 98
taxmann.com 117 (Gujarat) [11-09-2018] and CIT v. Chhabil Dass
Agarwal, (2014) 1 SCC 603.
54. He submitted that, it is a settled principle that Section 197 of the Act
does not determine assessable income or final tax liability. Such a
determination is statutorily reserved for regular assessment proceedings,
followed by appellate remedies and drawn towards the provisions of Section
190 of the Act. It is a settled principle of law that, Section 197 of the Act
certification is purely interim and provisional in nature, based on current
demand and revenue sensitivity considerations, and does not create a vested

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or enforceable right in favour of the Assessee, nor does past issuance of nil
or lower deduction certificates bind the Revenue for subsequent years. The
proceedings under Section 197 of the Act are interim and summary in
nature; as such the petitioner's reliance on earlier years is misconceived,
misleading and untenable.
55. Mr. Sinha submitted that, Section 197 of the Act read with Rule
28AA of the Rules, expressly requires that, while considering an application
for a lower or nil deduction certificates, the AO must take into account the
tax payable on the basis of completed assessments and the existing
outstanding tax liability. Where there is recoverable demand without stay,
the Revenue is precluded from issuing a nil/lower deduction certificate, as
doing so would frustrate the recovery mechanism.
56. He submitted that the petitioner misconstrued the objective and
purpose of the issuance of the certificate under Section 197 of the Act as the
same is issued to enable the deductee/assessee to receive the amount from
the deductor. In essence, the statutory rate of deduction of TDS is lowered
by the AO by grant of certificate under Section 197 of the Act. He has relied
on Section 190 of the Act and the CBDT Instruction no. 8/2006 dated
31.10.2006, as under:-
“1. I am directed to say that instances have been brought to
the notice of the Board that Assessing Officers are issuing
certificates for lower deduction or non-deduction of tax at
source under section 197(1) of the Income tax Act
indiscriminately and in contravention of the methodology and
procedure laid down in rules 28AA and 28AB of the Income-
tax Rules. Such arbitrary issuance of certificates under section
197(1) not only adversely affects the collection of tax at source
but also seriously jeopardizes the chances of

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disclosure/detection at a later stage of such incomes on which
no tax has been deducted or tax has been deducted at a very
low rate.
2. Accordingly, all Assessing Officers are directed to ensure
that all certificates under section 197(1) are issued by them
strictly as per the manner prescribed under rule 28AA or rule
28AB, as the case may be. No certificate under section 197(1)
shall be issued under circumstances, which are not covered by
rule 28AA or rule 28AB, howsoever genuine and compelling
such circumstances may be. Moreover, the Assessing Officer
shall obtain prior administrative approval of the Range Jt.
CIT/Addl. CIT before issuing a certificate under section
197(1). The Jt. CIT/Addl. CIT shall satisfy himself of the fact
that the certificate is being issued strictly in accordance with
rule 28AA/28AB before according his approval for issuance of
the certificate. A record of such certificate issued should be
maintained in the office of the Assessing Officer.”
57. Another CBDT Instruction no. 7 of 2009 dated 22.12.2009 also
echoed a similar view as under:
“I am directed to bring to your notice on the subject of issue of
certificates under section 197. Instruction no. 8/2006, dated
13-10-2006, was issued stating that 197 certificates for lower
deduction or nil deduction of TDS under section 197 are not
to be issued indiscriminately and for issue of each certificate,
approval of the JCI/Addl. CIT concerned need to be taken by
the Assessing Officer (AO). Further, a letter of even number
dated 6-10-2008 was issued stating that power of issue of
certificates under section 197 would ordinarily be exercised by
the officers manning TDS Administration. However, instances
are being brought to the notice of Board that the Assessing
Officers are issuing certificates for lower or non-deduction of
tax at source under section 197 indiscriminately, in
contravention of relevant Income-tax Rules and Instructions.
I am, therefore, directed to communicate to you that further to
the contents of Instruction no. 8/2006, prior administrative
approval of the Commissioner of Income-tax (TDS) shall be

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taken (where the cumulative amount of tax foregone by non-
deduction/lesser rate of deduction of tax arising out of
certificate under section 197 during a financial year for a
particular assessee exceeds ₹ 50 lakhs in Delhi, Mumbai,
Chennai, Kolkata, Bangalore, Hyderabad, Ahmedabad and
Pune stations and ₹ 10 lakhs for other stations. Once the
CIT(TDS) gives administrative approval of the above, a copy
of it has to be endorsed invariably to the jurisdictional CIT
also.”
58. He submitted that, Section 197 of the Act is not applicable to every
case of payment, and the grant of certificates is restricted only to the
provisions mentioned therein. The decision to include any provision within
the purview of Section 197 of the Act is subject to policy considerations and
amendments by the Government. The provisions of Section 197 of the Act
have been introduced with an objective that the refund of a particular
amount pursuant to the filing of the Return of Income carries an interest cost
on the public exchequer. Therefore, an option has been given to the AO to
grant certificates at a “Nil” rate or any other rate lower than the actual rate
applicable for deduction of TDS. Therefore, it requires satisfaction of the
AO in such cases. However, at the same time, such a view cannot be
arbitrary and to ensure uniformity, the provisions of Rule 28AA of the
Rules, come into the picture.
59. While relying upon the judgment in Manpowergroup Services India
Pvt.(supra), Mr. Sinha submitted that, this Court was in agreement with the
submission of the Revenue that it is the decision making process and not the
decision that can be impugned in a writ petition. This Court held that the
consideration prescribed under Clause 2 of Rule 28 of the Rules are
mandatory and the Revenue is bound to determine the yearly TDS rates

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based on the four parameters prescribed therein. He also submitted that the
AO has considered the above aspect and rejected the application of the
petitioner. It is undisputed that the demand exists on the portal which has
neither been recovered nor been stayed by any Court or Tribunal.
60. He submitted that the scope of judicial review in the application under
Section 197 or to grant a lower rate of withholding tax vis-à-vis the statutory
rate of deduction, is extremely narrow, as such orders are interim in nature
and only reflect a tentative/estimated opinion and if the Assessee is found to
be eligible for refund, the same shall be granted to the Assessee with
applicable statutory interest.
61. He submitted that doctrine of res judicata does not strictly apply to
interim / provisional certificate issued under Section 197 of the Act, as held
by the Bombay High Court in Messrs H.A. Shah & Co. v. Commr. of
Income-Tax and Excess Profits Tax, Bombay City, (1956) 30 ITR 618 . He
also stated that, a similar view was taken by the Constitution Bench of the
Supreme Court in Instalment Supply (P) Ltd. v. Union of India, 1961 SCC
OnLine SC 185 . Therefore, the general rule is that this doctrine is
inapplicable for tax matters as the findings/opinions recorded by either an
assessing or adjudicating authority have no binding effect on the same issue
in subsequent years
62. In support of his submission on the non-applicability of doctrine of
res-judicate and estoppel , he has relied upon Amalgamated Coalfields Ltd.
v. Janapada Sabha, 1962 SCC OnLine SC 72 and Distributors (Baroda)
(P) Ltd. v. Union of India, (1986) 1 SCC 43.

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63. He seeks dismissal of the present petition with exemplary costs.
ANALYSIS AND CONCLUSION
64. Having heard the learned counsel for the parties and perused the
record, at the outset, we intend to deal with the submission of Mr. Sinha on
the issue of territorial jurisdiction of this Court to entertain the writ petition.
65. The submission of Mr. Sinha is that the impugned certificate has been
issued from the office of DCIT (TDS), Gurugram, Haryana and as such, the
petitioner needs to approach the Punjab and Haryana High Court for
challenging the said certificate. His submission is also by drawing our
attention to Form no. 13 wherein the petitioner has mentioned its address as
Gurugram, Haryana.
66. This submission looks appealing on a first blush but on a deeper
consideration it is noted that the impugned certificate, though issued from
Gurugram, Haryana but is addressed to the office of the petitioner in Delhi
i.e., Make My Trip (India) Pvt. Ltd. B-36, First Floor, Pusa Road, New
Delhi-05. What is important is that the application filed by the petitioner was
addressed to Asstt. Commission of Income Tax, Circle 75(1), Aayakar
Bhawan, Laxmi Nagar, New Delhi.
67. That apart, we find that the certificate for the previous AY 2025-26
has been issued from office of TDS Circle 75(1), Aayakar Bhawan, District
Centre, Laxmi Nagar, Delhi. Similar is the position with respect to AYs
2024-25, 2023-24, 2022-23, 2021-22, 2020-21, 2019-20 and 2018-19, as
reproduced herein under:-

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S.No. Year PAN No. Issuing Authority- Certificate
issued under Section 197 of
the Act.
1. AY 2018-19 AADCM5146R Certificate under Section
197(1) of the Income Tax Act,
1961 relating to deduction of
tax at source TDS Circle 75(1),
Delhi
2. AY 2019-20 AADCM5146R Certificate under Section
197(1) of the Income Tax Act,
1961 relating to deduction of
tax at source TDS Circle 75(1),
Delhi
3. AY 2020-21 AADCM5146R Office of TDS circle 75(1),
Delhi - Aayakar Bhawan,
District Centre, Laxmi Nagar,
Delhi – 110092.
4. AY 2021-22 AADCM5146R Office of TDS circle 75(1),
Delhi - Aayakar Bhawan,
District Centre, Laxmi Nagar,
Delhi – 110092.
5. AY 2022-23 AADCM5146R Office of TDS circle 75(1),
Delhi - Aayakar Bhawan,
District Centre, Laxmi Nagar,
Delhi – 110092.
6. AY 2023-24 AADCM5146R Office of TDS circle 75(1),
Delhi - Aayakar Bhawan,
District Centre, Laxmi Nagar,
Delhi – 110092.
7. AY 2024-25 AADCM5146R Office of TDS circle 75(1),
Delhi - Aayakar Bhawan,
District Centre, Laxmi Nagar,
Delhi – 110092.
8. AY 2025-26 AADCM5146R Office of TDS circle 75(1),
Delhi - Aayakar Bhawan,
District Centre, Laxmi Nagar,
Delhi – 110092.


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68. Having said that the submission of Mr. Kapoor is primarily that for
several years the petitioner has filed multiple tax and non-tax writ petitions
before this Court, all of which have been entertained and adjudicated
without jurisdictional objection including Make My Trip (India) Pvt. Ltd.
(supra) . That apart, we find that the orders under Sections
154/201(1)/201(1A) for the AYs 2018-19 and 2019-20 dated 22.08.2025
have been passed from the aforesaid Circle 75(1), Laxmi Nagar, New Delhi,
to which a reference has been made by the respondents in support of their
submission that recovery that has to be effected by the Revenue from the
petitioner.
69. Suffice to state, except the impugned order which also is addressed to
the office of the petitioner in Delhi, the orders issuing the certificates under
Section 197 of the Act and the order dated 22.08.2025 under Section
154/201(l)/201(1A) of the Act, were issued by Circle 75(1), Laxmi Nagar,
New Delhi. So, in view of the aforesaid position, in the peculiar facts of this
case, we are not inclined to reject the petition on this ground i.e., territorial
jurisdiction.
70. Another submission made by Mr. Sinha is that the remedy for the
petitioner is to file a revision petition under Section 264 of the Act. In this
regard, we may state that the jurisdiction under Article 226 of the
Constitution of India is not barred for this Court to adjudicate a petition
against the rejection of application under Section 197 of the Act.
71. The submission of Mr. Kapoor is that the respondents have issued
certificates for three immediately preceding FYs at 0.30% and there being
no change in the facts and circumstances, the respondents could not have

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taken a contrary view and ought to have granted a „ NIL Withholding
Certificate‟ .
72. On this, the submissions of Mr. Sinha can be summed up in the
following manner:-
(i) On 25.02.2025, orders have been passed under Section
201(1)/1A for the financial year 2017-18 and 2018-19
raising a demand of Rs. 9.89 crores and Rs. 10.61 crores,
which demands have now been reduced to Rs.
4,50,73,009/- and Rs. 4,60,59,833/- respectively.
(ii) As per the information given by the petitioner, demands
of Rs. 71,58,029/- and Rs. 3,71,098/- are pending
rectification with the Assessing Officer.
(iii) No evidence has been placed by the petitioner that the
demands are stayed.
(iv) A demand of Rs. 56,33,776/- has been raised against the
petitioner, against which the petitioner has filed an
appeal, which is pending adjudication.
(v) An outstanding amount of Rs. 5,91,27,449/- is collectible
as per Annexure-12 submitted by assessee.
(vi) As per Rule 28AA of the Rules, there is substantial tax
liability including TDS default which materially impacts
the consideration for issuance of certificate under Section

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197 of the Act, and „ NIL Withholding Certificate‟ has
been rightly denied.
73. These submissions of Mr. Sinha have been contested by Mr. Kapoor
by stating that the petitioner is entitled to tax refund of Rs. 84,10,73,810/-
from the years 2016-17 to 2023-24. In this respect, we may reproduce the
details of the refund as per the petitioner and the demand as per the Revenue
in the following manner:-
AS PER THE PETITIONER
AY Amount Remarks
2023-24 57,07,97,860
(Refer Note 1)
Pursuant to rectification order (dated September
18, 2024) r/w intimation u/s 143(1). Letters
pending with AO for disposal.
2022-23 6,96,53,092 Pursuant to order dated March 31, 2024. u/s
143(3). Rectification filed for loss set off.
Pending with AO.
2021-22 10,96,58,323 Pursuant to order (dated February 6, 2024) u/s
143(3). Partial refund received. Letters filed for
balance refund, pending with AO.
2020-21 1,77,19,913 Pursuant to order (dated January 17, 2023) u/s
154. Interest u/s 244A short granted.
Rectification pending with AO for disposal.
2018-19 6,75,53,521 Pursuant to order (dated May 26, 2021), u/s
143(3). Interest u/s 244A short granted.
Rectification pending for disposal till date.
2016-17 56,91,101 Pursuant to order dated December 26, 2019, u/s
143(3). Interest u/s 244A short granted. Refund
of Rs. 3,57,72,632 received. Part refund of Rs.
56,91,101, yet to be received.
84,10,73,810

AS PER THE REVENUE (in terms of the table given by the petitioner)

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AY Demand
Original
outstanding
Demand outstanding as
raised
against
of the date
demand
2018-19 PAN 71,57,049 71,57,049
2019-20 PAN 3,71,098 3,71,098
2021-22 PAN 56,33,776 46,69,960 vide
rectification order dated
May 22, 2024)
2013-14 TAN 70,40,481 (Refer
70,40,481
Note 1)
2014-15 TAN 2,28,54,410
(Refer Note 1)
2,28,54,410
2018-19 TAN 9,89,79,279 4,50,72,009 (rectified
vide rectification order
dated 22.08.2025)
2019-20 TAN 10,61,47,079 4,60,59,833 (rectified
vide rectification order
dated 22.08.2025)
2024-25 (Q3) TAN 1,02,080 1,02,080
2025-26 (Q3
TAN 52,86,640 52,86,640
and Q4)
2026-27 (Q1) TAN 21,89,740 21,89,740
25,57,61,632 14,08,03,300

74. It is important to note that there is no denial that for the past many
years, the respondents/Revenue have issued certificates withholding tax at
lower rate in the following manner:-
Date of
Certificate
A.Y. Rate of
Withholding tax
01.06.2024 2025-26 0.30%
09.06.2023 2024-25 0.30%
05.08.2022 2023-24 0.30%
05.05.2021 2022-23 0.10%
29.06.2020 2021-22 1.50%
29.05.2019 2020-21 1%, 1.50%, 4%
20.07.2018 2019-20 1%, 1.50%, 3%

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15.05.2017 2018-19 0.75%, 1.5%

75. The law insofar as what should be the relevant consideration for
issuance of certificate of this nature is well settled. Rule 28AA of the Rules,
which prescribes a formula for determining the appropriate rate of TDS
based on the estimated tax liability and existing demand. It is also a settled
law in terms of Manpower Group Service Pvt. Ltd. (supra) that, an order
under Section 197 of the Act must be reasoned and cannot arbitrarily fix
rates without justification. In this case, we find that no reasons have been
given by the respondents to reject the application except stating that there
are demands of Rs. 23,80,63,189/-, against the TAN of the petitioner. It was
the submission of Mr. Kapoor, while considering the application of the
petitioner the respondents sought specific clarification regarding outstanding
tax demand of Rs.1,50,65,760/- and Rs. 11,660/- and never for the demand
aggregating Rs.23,50,21,249/-
76. In any case, it is a conceded position that, even the cumulative
demand of Rs. 23,50,63,189/-, (Including Rs.9,89,79,279/- and
Rs.10,61,47,079/- which were added on 25.02.2025) has been
reduced/rectified to Rs. 14,08,03,300/-, in terms of rectification orders
passed on 22.08.2025, after the impugned certificate dated 17.07.2025 was
issued. The figure of Rs. 23,50,63,189/-, has been reduced/rectified to
14,08,03,300/- which aspect has not been considered by the AO. It is
necessary to state here that a reference to Rs. 5,91,27,449/-, has been made
by the respondents but the quantification and the basis of the said amount
has not been given.

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77. Suffice to state that, in the past, withholding certificates were issued
at rates between 0.10% to 4% and the rejection of application has the effect
of deducting normal rate of tax at source, which is clearly untenable,
particularly when no reasons have been given in the impugned order for
rejecting the application for NIL withholding certificate, moreso, when an
alternative prayer in the application for deduction of tax at the rate as
granted by the Revenue in the preceding year, i.e. FY 2024-25 vide the
certificate dated 01.06.2024 i.e., at 0.30% was sought.

78. This Court in Virgin Atlantic Airways Ltd. v. PCIT, W.P.(C)
5978/2021 dated 29.07.2021 , has observed that :-
“ 11. We have considered the submissions made by the
learned counsel for the parties. The impugned "speaking
order" has been reproduced hereinabove. Apart from
stating that the petitioner may have other sources of
income, the impugned order does not reflect compliance
with rule 28AA of the Income-tax Rules, 1962. None of the
considerations mentioned in rule 28AA appear to have
been considered by the respondent in passing the
impugned "speaking order ".
12. This court in Manpowergroup Services India Pvt. Ltd.
(supra) (authored by one of us (Justice Manmohan)), has
held that the Assessing Officer cannot ignore the mandate
of rule 28AA of the Rules and proceed on any other basis,
as the Government isbound to follow the rules and
standards they themselves have set on the pain of their
action being invalidated. In the absence of following the
said mandate, the impugned order passed is liable to be
quashed. The relevant extract from the abovementioned
judgment is reproduced herein below (page 412 of 430
ITR) :
…………..

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14. We may also take note of the judgment of this court in
Lufthansa Cargo AG (supra) wherein under similar
circumstances, this court had held that where an order
discloses non-application of mind to germane and relevant
considerations including the previous assessment orders
and the certificates issued under section 197 of the Act, the
order passed shall be arbitrary and liable to be set aside. ”
(Emphasis supplied)
79. Mr. Sinha has relied upon the following judgments to support his
submissions:-
i. In Chhabil Dass Agarwal (supra), the question was whether the
High Court was justified in interfering with the order passed by
the assessing authority under Section 148 of the Act in exercise of
the jurisdiction under Article 226 of the Constitution when an
equally efficacious alternate remedy was available to the assessee
under the Act. Whereas in the present petition, the challenge is
against the rejection of certificate under Section 197 of the Act
and a petition under Article 226, is equally an efficacious remedy.
ii. In Coforge Solution (P.) Ltd.(supra) , the
respondent/Revenue rejected the application on the ground that
the petitioner did not file the return for the last four previous
years. Aggrieved by the same, the petitioner filed the writ petition
before the High Court. The issue in the case was whether the
petitioner therein could have availed the alternative statutory
appeal/remedy by filing an appeal challenging the impugned order
before the competent authority rather than filing a writ petition
under Article 226 of the Constitution. In the said case it was not

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pleaded by the petitioner that there was violation of principles of
natural justice while passing the impugned order or there was a
lack of jurisdiction or procedure required for the decision.
In the case in hand, the impugned order is a non-speaking order
and it is the case of the petitioner that such an order violates its
principles of natural justice.
iii. In Areva T&D, SA (supra) , the issue was with regard to non-filing
of return. The Court held that on a conjoint reading of Sections
195 and 197 it is clear that any opinion expressed at the time of
grant of certificate, is tentative or provisional or interim in nature
and the same would not debar the Assessing Officer from
initiating proceedings under Section 147 on the ground that there
has been a change of opinion. Therefore, the contentions of the
assessee were to be rejected. The said case is distinguishable on
facts.
iv. In Ansaldo Engergia SpA (supra) , the certificate under Section
197 read with Section 44BBB of the Act was cancelled . The Court
held that even if a certificate for deduction at source at a lower
rate was withdrawn, the consequence of such a withdrawal would
be that the deduction had to made at a higher rate but ultimately
the question of liability was to be decided in the assessment
proceedings. Therefore, the judgment is distinguishable on facts.
v. Ramjas Foundation and another v. Union of India and Others,
(2010) 14 SCC 38 , is also clearly distinguishable on facts as it was

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a case wherein the issue was with regard to the Land Acquisition
Act, 1894.
vi. In Dalip Singh v. State of Uttar Pradesh and Others, (2010) 2
SCC 114 , the issue was with regard to tenancy and land laws. The
said case is also distinguishable on facts.
vii. In National Petroleum Construction Co. (supra) , the issue was
with regard to Section 9, read with Section 197, of the Act and
Article 5 of OECD Model Convention- Income- Deemed to accrue
or arise in India (Permanent Establishment). In the present case,
the challenge is to an order rejecting application for “Nil
Withholding Certificate” and not whether a PE exists in India for
issuance of Certificate under Section 197 of the Act hence is
clearly distinguishable.
viii. In OPJ Trading (P.) Ltd (supra) , the issue was with regard to the
jurisdiction of the Assessing Officer and the Commissioner of
Income Tax with respect to the rate at which tax to be deducted.
The judgment is distinguishable on facts.
ix. In Sis Live (supra) , the issue was with regard to the jurisdiction
exercised by the AO under Section 197 of the Act. The Court
disposed of the writ petition by stating that the matter be
remanded back to the Commissioner of Income Tax for revision.
The factual matrix in the said case is different as the matter was
remanded back to the Revenue. Therefore, the said judgment is
not applicable to the facts of this case.

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80. Mr. Sinha has also relied upon the following judgments to support his
submissions on the issue of res judicata . Suffice to state they have no
applicability to the facts and the issue which falls for consideration and in
view of our findings above:
i. Messrs H.A. Shah & Co. (supra);
ii. Instalment Supply (Private) Ltd. and another (supra);
iii. Amalgamated Coalfields Ltd. and another (supra);

iv. Distributors (Baroda) Pvt. Ltd. (supra).
81. In the facts of this case and in view of our discussion, the impugned
order/certificate under Section 197 of the Act dated 17.07.2025 is set aside
and the matter is remanded back to the AO for him to consider our aforesaid
conclusion and then pass a reasoned and speaking order under Section 197
of the Act. This exercise shall be carried out by the AO within a period of
two weeks from today. It is ordered accordingly.
82. The writ petition is allowed on the above terms. The pending
application is disposed of as infructuous.

V. KAMESWAR RAO, J


VINOD KUMAR, J
MARCH 16, 2026 /sr

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