COMMISSIONER OF INCOME TAX (TDS) vs. M/S VODAFONE IDEA LIMITED

Page No.# 4/16 5:THE DEPUTY COMMISSIONER DHUBRI DISTRICT

HAVING HIS OFFICE AT DHUBRI P.O. AND P.S. DHUBRI

DIST. DHUBRI ASSAM PIN - 783301. 6:THE DEPUTY COMMISSIONER GOALPARA DISTRICT HAVING HIS OFFICE AT GOALPARA P.O. BALADMARI P.S. GOALPARA (SADAR) DIST. GOALPARA ASSAM PIN - 783121. 7:THE DEPUTY COMMISSIONER OF POLICE (BORDER) KAMRUP (METRO) DISTRICT HAVING HIS OFFICE AT PANBAZAR P.O. AND P.S. PANBAZAR DIST. KAMRUP (METRO) ASSAM PIN - 781001. 8:THE OFFICER-IN-CHARGE DHUBRI POLICE STATION

HIS OFFICE AT DHUBRI P.O. AND P.S. DHUBRI DIST. KAMRUP (METRO) ASSAM PIN - 783301. ------------ Advocate for : MR G Z AHMED Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 7 ORS.

Page No.# 5/16 BEFORE HON’BLE MR. JUSTICE KALYAN RAI SURANA HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the petitioner : Mr. A.R. Sikdar, Advocate For FT and Border matters : Mr. J. Payeng, Standing Counsel. For ECI : Mr. M. Islam on behalf of

Mr. A.I. Ali, Standing Counsel. For the State : Mr. P. Sarmah, Addl. Sr. Govt. Advocate. Date of hearing : 29.07.2025. Date of judgment : 27.10.2025.

JUDGMENT AND ORDER (CAV) (K.R. Surana, J)

Pursuant to the reference made by the Senior Superintendent of Police (Border), Kamrup (M), Guwahati, vide Case No. 635/2006, dated 27.04.2007, expressing doubt about the nationality of the petitioner, a proceeding registered as F.T. Case No. FT(G-4) 784/2017, was instituted before the learned Member, Foreigners Tribunal 4th, Kamrup (M). The petitioner had contested the proceeding and in his evidence, the petitioner had exhibited as 8 (eight) documents. The documents exhibited are: – (i) Admit card issued by the Board of Secondary Education, Assam (Ext.1); NRC, 1951 (Ext.2); voters list of 1966 (Ext.3); Elector Photo Identity Card (EPIC for brevity) of Aminur Ali (Ext.4); EPIC of Khudu Sheikh (Ext.5); final khatian (Ext.6); periodic khiraj patta (Ext.7); and kecha patta (Ext.8). 2) The learned Tribunal, upon analyzing the pleadings made in the written statement and evidence adduced by the petitioner, vide the impugned opinion dated 27.04.2007, opined that the petitioner, namely, Md. Aminoor Islam

Page No.# 6/16 as a foreigner who had entered into the State of Assam after 25.03.1971 and was liable to be deported. The said opinion dated 29.06.2018, passed by the learned Member, Foreigners Tribunal 4th, Kamrup (M) in F.T.Case No. FT(G-4) 784/17 was put to challenge before this Court by filing W.P.(C) 4876/2018. This Court, upon hearing the learned counsel for the appearing parties and on examining the evidence on record, dismissed the said writ petition vide order dated 04.12.2018. 3) Accordingly, by filing this review petition on 04.03.2020, under Chapter-X of the Gauhati High Court Rules, read with Section 114 and Order XLVII, Rule 1 of the CPC, the petitioner, namely, Aminur Ali @ Aminoor Islam, has prayed for review of the said order dated 04.12.2018, passed by the Division Bench of this Court in W.P.(C) 4876/2018. 4) The gist of six grounds on which this review petition is presented are as follows:- I) That grave injustice has been caused in passing the erroneous order dated 04.12.2018 in dismissing the writ petition. II) The writ petition was dismissed without there being any denial cross-examination to the claim of the petitioner that the father of the petitioner was a voter of 1966 and 1970 and the evidence was disbelieved only due to name discrepancy, for which reliance is placed on the case of Sirajul Haque v. Union of India, (2019) 5 SCC 534. III) The writ petition was dismissed by taking a view that no voter list was exhibited showing the name of the mother of the petitioner. It

Page No.# 7/16 is also stated that Annexure-7, 17 and 18 annexed to the writ petition discloses the name of the mother of the petitioner and therefore, as primary documents were available, the clarifying documents may be accepted and the opinion is liable to be modified. IV) In paragraph 55 of the case of Sarbananda Sonowal v. Union of India & Ors., (2007) 1 SCC 174, it has been held by the Supreme Court of India that adequate care should be taken so that no genuine citizens of India is thrown out. Moreover, the Supreme Court of India in the case of Rafique v. Munshilal & Anr., (1981) 2 SCC 788, has held that a litigant should not suffer due to fault of the lawyer and in the case of Cement Workers Association v. Joypur Udyog Ltd., (2008) 4 SCC 701, it has been held that justice should not only be done but should manifestly be seen to be done. However, the said principles were not followed in passing the impugned order. V) Exhibit nos. 1 to 7 establishes linkage with petitioner’s parents. VI) There are error apparent on the face of record and the review is maintainable. 5) In order to support the six grounds, the petitioner has made statements which runs into 37 paragraphs. 6) Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned standing counsel for FT and Border matters, representing respondent nos. 2, 4, 7 and 8; Mr. M. Islam, learned counsel,

Page No.# 8/16 appearing on behalf of Mr. A.I. Ali, learned standing counsel for the respondent no.3 and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for respondent nos. 5 and 6. 7) The learned counsel for the petitioner has made elaborate and lengthy submissions in the matter. It would suffice to mention that the learned counsel for the petitioner has referred to the statements made in all the 37 paragraphs of the review petition. 8) It was submitted that the reference was defective and the police enquiry was done behind the back of the petitioner, without asking him to produce any document in support of his stand that he is an Indian citizen. It was submitted that the petitioner was a citizen of India, born to Indian parents. The name of Amatulla Sheikh, his projected grandfather appeared in the NRC of 1951 and the name of Khudu Sheikh, his projected father appeared in the voter list of 1966, 1970, 1997 and 2008 of village- Chot Bashjani in the district of Dhubri and had land in village- Chagal Chora, in the district of Goalpara, bearing khatian no. 21. The petitioner had passed his HSLC Examination, 2008, conducted by Board of Secondary Education, Assam. In this regard, reliance has been placed on the evidence-on-affidavit and cross-examination of the petitioner (DW-1) and documents exhibited thereby, i.e. Annexure-3 to 12 of this review petition. 9) It was stated that the petitioner is Md. Aminur Ali, but notice of the proceeding was served to the petitioner in the name of Md. Aminoor Islam. It has been submitted that the School Leaving Certificate was a public document as per Section 74 of the Evidence Act, 1872. It was submitted that the petitioner had disclosed all material to his counsel, but his counsel committed fault in not

Page No.# 9/16 disclosing the name of the mother of the petitioner and thus, it was submitted that the petitioner should not suffer for the fault of his counsel. 10) The petitioner has filed his written statement and evidence-on- affidavit before the learned Tribunal. The petitioner has projected that he has passed HSLC Examination, 2008 conducted by Board of Secondary Education, Assam and he has put his signature over his written statement and evidence-on- affidavit in English. Moreover, the learned Notary Public has made an endorsement in the foot of the evidence-on-affidavit of the petitioner, sworn on 03.11.2017, that its contents were read over and explained to the declarant, i.e. petitioner. It is not the pleaded case of the petitioner in this review petition that his learned counsel defending him before the learned Foreigners Tribunal had made the petitioner sign on dotted lines and was not given any scope to read his evidence-on-affidavit before swearing it before the Notary Public. Therefore, no presumption can be drawn that the petitioner had given instructions to his engaged counsel to disclose his mother’s name, but it was deliberately not disclosed. Moreover, as it is not the case of the petitioner in the writ petition that his learned counsel had acted contrary to instructions and no complaint before the competent forum has been filed by the petitioner, there is no scope to presume that the learned counsel engaged by the petitioner was at any fault and the petitioner has failed to sustain this plea. Resultantly, the reliance on the case of Rafique (supra) appears to be totally misplaced and/or misconceived. 11) It was submitted that the Admit Card issued by the Board of Secondary Education, Assam, issued in the name of Md. Aminur Ali, son of Md. Khadu Sheikh and Amena Bibi for HSLC Examination, 2008 is a public document within the meaning of Section 79 of the Evidence Act, 1872.

Page No.# 10/16 12) In this case, the records of the Tribunal disclose that not only the learned counsel for the petitioner was taking steps all throughout, but he had also submitted a written argument. Thus, if the petitioner has not read the contents of his written statement, evidence-on-affidavit, and the written argument, the only presumption that can be drawn by the Court is that the presentation of the petitioner’s written statement, evidence-on-affidavit and written argument was as per his instructions. The petitioner appears to have become suddenly wiser after his writ petition was dismissed. 13) As regards the submission that the Admit Card of the Board of Secondary Education, Assam (Ext.1) is a public document within the meaning of Section 79 of the Evidence Act, 1872, it is seen that in paragraph 2 of the evidence-on-affidavit filed by the petitioner as DW-1, it has been stated that – “… I have completed H.S.L.C. examination in the year 2008 from The Board of Secondary Education, Assam. …” The learned counsel for the petitioner has utterly failed to explain how Ext.1 is said to be duly proved when it is stated in the evidence-on-affidavit that the petitioner has completed HSLC Examination. It could not be shown that this Court, while deciding the writ petition, had committed grave error of law in failing to presume that admit card (Ext.1) is a proof of relationship between the petitioner and his projected parents, in the absence of any statement by the petitioner (DW-1) that Ext.1 proves the existence of his relationship with his projected parents. The learned counsel for the petitioner has failed to show any statement in the evidence-on-affidavit of the petitioner that Amena Bibi is his mother. Therefore, neither the Foreigners Tribunal nor this Court can be said to have committed any error apparent on the face of the record in appreciating Ext.1 in the absence of any attempt on part of

Page No.# 11/16 the petitioner to prove its contents, save and except that Ext.1 was proved to show that he had completed his HSLC, which also cannot be presumed from Ext.1 as an admit card is no proof of passing examination. 14) As regards the submissions made by the learned counsel for the petitioner by referring to the statement made in paragraph 11 of the review petition that non disclosure of name of mother in written statement was not fatal as it is not mandatory to file written statement, the Court is unable to accept the said contention for two reasons. Firstly, it has not been shown that this point was taken up in the written statement. Moreover, if one requires an authority on the point that pleadings is required in a proceeding before the Foreigners Tribunal, one may refer to the case of Rashminara Begum v. Union of India & Ors., 2017 (4) GLT 346, wherein it has been held that material facts pleaded would have to be proved by adducing cogent and admissible evidence. Thus, on this point, there appears to be no error apparent on the face of the record. Rather, this appears to be a new point raised in this review petition. 15) The learned counsel for the petitioner, in support of his submissions that the petitioner, not being the author of the voter list, cannot be made to suffer loss of his citizenship because of minor discrepancy in the names of his parents and grandfather in the voter list, has placed reliance on the case of Abdul Matali @ Md. Mataleb @ Abdul Mataleb @ Mutaleb @ Md. Abdul Matleb v. Union of India & Ors., 2015 (2) GLT 617. In the said regard, it may be mentioned that this Court, in the case of Basiron Bibi v. Union of India & Ors., (2018) 3 GLR 196: 2018 (1) GLT 372; (2017) 0 Supreme(Gau) 1335, having dealt with the case of Abdul Matali @ Mataleb (Md.) (supra), held as under:- 29. Reliance placed in the case of Abdul Matali @ Mataleb (Md.) (supra), can be of

Page No.# 12/16 no assistance to the petitioner inasmuch, as it has already been clarified by this Court in previous decisions that the said decision did not lay down any law and was a decision confined to the facts and circumstances of that case. Regarding discrepancies in the voters' lists which the petitioner contended were not her creation being entered into by officials of Election Commission and therefore should not be used adversely against the petitioner, such contention is without any substance. The voters' lists were adduced as evidence by the petitioner herself to prove her case that she was not a foreigner but a citizen of India. Petitioner cannot insist that only that portions of the voters' lists which are in her favour should be accepted and those portions going against her should be over-looked. This is not how a document put forward as a piece of evidence should be examined. The document has to be appreciated as a whole.

16) Thus, the case of Abdul Matali @ Mataleb (Md.) (supra) does not help the petitioner in the facts and circumstances of this case. Moreover, the said case has been distinguished in the case of Basiron Bibi (supra). The reason is that the petitioner has not disclosed the names of all his family members in his written statement and evidence-on-affidavit. The petitioner has not proved the entries contained in the voter lists of 1966 (Ext.3), produced in evidence. There is no pleading as to what happened to the four voters whose names are contained therein. Thus, the sudden appearance of their respective names in only one voters list does not establish that they were “ordinary residents in Assam” as required under the provisions of Section 6-A(2) of the Citizenship Act, 1955. The Periodic Kheraj Patta (Exct.7), exhibited by the petitioner is for the period from 01.04.2009 to 31.03.2020 and therefore, a post 25.03.1971 document. Moreover, unless the petitioner is able to establish his link with his projected father, the said Ext.7 and other exhibited documents, i.e. Ext.6 and Ext.8, would not come to the aid of the petitioner. 17) The police authorities have issued the extract of NRC 1951

Page No.# 13/16 (Ext.1) to the petitioner. In this regard, the submission of the learned counsel for the petitioner was that it is a public document and therefore, Section 74 and 79 of the Evidence Act, 1872 would apply. In this regard, it would be relevant to refer to the decision of this Court in the case of Abdul Mojid @ Mojid Ali v. Union of India & Ors., 2019 (2) GLT 45, wherein it has been held that the NRC extract produced to prove domicile in India is inadmissible in evidence. Therefore, the Court is of the view that unless all the relevant facts are pleaded and proved by a proceedee before the Foreigners Tribunal, NRC in respect of persons, whose continuous stay in the Country with other members of his or her family is not proved, it cannot be acceptable that the projected father of the petitioner, whose names appear in the NRC of 1951 and then appears in the voter list of 1966 was sufficient to prove the citizenship of the petitioner. 18) The learned counsel for the petitioner has not been able to show that the stand taken in paragraph 15 and 23 of the review petition, thereby describing the persons whose name appear in the Ext.1, Ext.2 and Ext.3 and in the voter list of 2005, was either pleaded before the Foreigners Tribunal or in the writ petition. In paragraph 25 of the review petition, it has been urged that the investigation was not proper and reliance has been placed on paragraph 97 of the case of State of Assam v. Moslem Mondal, 2013 (1) GLT 809. The learned counsel for the petitioner has not been able to show that the point was raised in the writ Court and the Court had committed any error apparent in not discussing the point raised. Therefore, most of the stand taken in this review petition, is being raised for the first time in this review petition. 19) In light of the discussions in the foregoing paragraphs, the case of Sarbananda Sonowal (supra) (para-55), does not come to the aid of the

Page No.# 14/16 petitioner. 20) Almost all the points urged by the learned counsel for the petitioner and the grounds on which this review petition is presented, are either new grounds or points that were already taken up in the writ petition. The learned counsel for the petitioner has failed to demonstrate and urge in any of the grounds of review as to what was the error apparent on the face of the record. The Supreme Court of India, in the case of Nehali Panjiyara Vs. Shyama Devi, (2002) 10 SCC 578, has held that when entirely a new issue is raised in the review petition, interference in review proceedings on the said point is not proper. 21) The Supreme Court of India, in the case of Surendra Kumar Vakil & Ors. v. Chief Executive Officer, M.P. & Ors., (2004) 10 SCC 126, has held to the effect that a point that has been heard and decided cannot form a ground for review even assuming that the view taken in the judgment under review is erroneous. It is also not the case of the petitioner that the order under review is vitiated by any misconception of fact or law by this Court when the writ petition was decided. 22) The Supreme Court of India, in the case of Satyanarayan Laxminarayan Hegde & Ors. v. Mallikarjun Bhavanappa Tirumale, (1960) 1 SCR 890: (1959) 0 Supreme(SC) 168, by referring to the case of Batuk K. Vyas v. Surat Burrough Municipality, AIR 1958 Bom 133 and Hari Vishnu Kamath v. Ahmed Ishaque, AIR 1955 SC 233, had laid down as to what cannot be said to be an error apparent on the face of the record. It was observed: “17. … An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be

Page No.# 15/16 said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established, by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. …”

23) In the case of Syed Yakoob v. K.S. Radhakrishnan & Ors., (1964) 5 SCR 64, the Constitution Bench had held as follows:- “7. … A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where Orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the Order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. …”

24) The Supreme Court of India, in the case of Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd., AIR

Page No.# 16/16 2008 SCW 7153: (2008) 0 Supreme(SC) 1374, has held as follows:- In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the Judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original Judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record.

25) In light of the discussions above, this review petition is misconceived and therefore, dismissed. 26) There shall be no order as to cost.

JUDGE JUDGE Comparing Assistant