TaxTMI 
TaxTMI 
2018 (4) TMI 1596
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....mitation? 3. Whether the ld. ITAT was correct in confirming demand of interest u/s 201(1A) of the Act where the recipient of such income had discharged the applicable tax? 3. The brief facts of the case are that Sri Karan Narendra Agriculture University, Jobner (hereinafter referred to as the "assessee appellant University") came to be established for promoting agricultural sciences as an Agricultural University situated at Jobner by the Act of the Agriculture University, Jobner, Act, 2013 (Act No. 20 of 2013). On 13.09.2013, the gazettee notification for establishment of the assessee appellant University was issued after obtaining the approval of the Hon'ble Governor, State of Rajasthan. The assessee appellant University is an autonomous body functioning in public interest with no motive of profit or for profit. The assessee appellant University is functioning under overall management, control and supervision of the Government of Rajasthan. Rajasthan Agriculture Research Institute, Durgapura, Jaipur having TDS Number (hereinafter referred to as 'TAN') JPRA00923G was working under the aegis of Swami Keshwanand Agriculture University, Bikaner. On 10.12.2013 by an offi....
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.... JPRS14180F whereby demand of Rs. 12,00,963/- was raised against the assessee appellant University u/s. 201(1)/201(1A) of the Act amounting to Rs. 6,27,384/- and Rs. 5,73,579/- respectively. 5. Counsel for the appellant Mr. Ranka has taken us to the order of CIT(A) wherein it has been observed as under: 4.3 The appellant has contended that during the year under consideration, this university was looked after by Swami Keshwanand Agriculture University, Bikaner and therefore assessee was not in existence in the year under consideration. This university came into existence on 13.09.2013 and therefore when the assessee was not in existence, no such responsibility of deducting TDS can be cast on it. On perusal of the scheme of the Act, it is clear that liability of deducting TDS is that of respective DDO. In the year under consideration, this agricultural university was one of the DDOs of Bikaner University. It has not a separate TDS No. Therefore the contention of A/R cannot be accepted and AO has rightly made assessment in hands of assessee. This ground is dismissed. 6. He contended that the Assessing Officer while considering the matter has held that the amount was required t....
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....11/2000 consequent to the reopening notice on 13/11/2000 had indicated that profit and loss account and balance sheet were part of the original return and therefore were not being separately attached. The return as filed on 17/11/2000 was identical to one filed on 22/09/1997. Inspite of the same on 20/11/2000 the Assessing Officer called for the profit and loss account and balance sheet on the ground that the same is not attached to the return of the income filed on 17/11/2000. It is submitted that if the return of income was available with the Assessing Officer there would have been no occasion for him to call for the balance sheet and profit and loss account by letter dated 20/09/2000 from the appellant. Thus the conclusion of the CIT(A) as well as the Tribunal that the original return of income may have been available on 13/11/2000 when the notice for reopening was issued without any evidence/basis cannot be sustained. 12. As against the above, Mrs. A. Desai submits that it is not open to the appellant to raise an issue of jurisdiction to issue notice under Section 148 of the Act before the first appellate authority. This is particularly so as the appellant had submitted to th....
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....appeal proceedings. The mere fact that no objection is taken before the Assessing Officer would not by itself bestow jurisdiction as the Assessing Officer. Such an objection can be taken in appeal also. Moreover, the Apex Court in its recent decision in Kanwar Singh Saini V/s. High Court Of Delhi reported in MANU/SC/1111/2011 : 2012(4) SCC 307 has held that it is settled position that conferment of jurisdiction is a legislative function and cannot be conferred by consent of petitioner. An issue of jurisdiction can be raised at any time even in appeal or execution. Reliance in this regard could usefully be made to Indian Bank v/s Manilal Govindji Khona reported in MANU/SC/0103/2015 : 2015 (3) SCC 712. Paras 22 of the said judgment read as under : "22. In Sushil Kumar Mehta case [Sushil Kumar Mehta v. Gobind Ram Bohra, MANU/SC/0593/1989 : (1990) 1 SCC 193] this Court has elaborately considered the relevant factual and legal aspect of the case and has laid down the law at para 10, after referring to its earlier decision of a four-Judge Bench of this Court speaking through Venkatarama Ayyar, J. ....
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....uire that before the passing of assessment orders, the same must be brought to the notice of the parties so as to enable the noticee to explain that the reliance upon the same is not justified. 17. Therefore in view of the above, the appeal is partly allowed. The impugned order dated 15/01/2007 passed by the Income Tax Tribunal, Panaji in ITA No. 24/PNJ/2005 is quashed and set aside. The appeal is restored to the file of the Tribunal. The Tribunal is directed to decide the appeal afresh on all issues after hearing the parties. As the appeal pertains to assessment year 1996-97, the Tribunal is directed to dispose of this appeal as expeditiously as possible. Tata Teleservices vs. Union of India and Ors. (05.02.2016 - GUJHC) : MANU/GJ/0122/2016 10. All these petitions are opposed by Mr. M.R. Bhatt, learned counsel appearing on behalf of the revenue -Income Tax Department. 10.01. Mr. M.R. Bhatt, learned counsel appearing on behalf of the revenue has vehemently submitted that as in the present petition the respective petitioners have challenged the notices/summonses issued by the respondent No. 2, they cannot/may not be entertained solely on the ground that all these petitions a....
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.... is submitted that as compared thereto, the legislature has done away with this distinction and the amendment prescribes a common period of limitation so as to align the time limit with the provision of Section 148 of the Act. 10.04. Mr. M.R. Bhatt, learned counsel appearing on behalf of the revenue has heavily relied upon the Memorandum to the Finance Bill (No.2) 2014. It is submitted that in the Memorandum it is specifically noted that as TDS defaults are generally in respect of the transaction not reflected in the TDS statement, it is proposed to omit clauses (i) and (ii) of sub-section (3) of Section 201. 10.05. Mr. M.R. Bhatt, learned counsel appearing on behalf of the revenue has vehemently submitted that the legislature can provide for a larger period of limitation. In support of his above submission, he has heavily relied upon the following decisions of the Hon'ble Supreme Court:-- "(1). AIR 1963 S.C. 1436 : 48 ITR 154 (Ahmedabad Manufacturing And Calico Printing Co. Ltd. Versus Income Tax Officer and others); (2). 1999(2) SCC 77 (Additional Commissioner....
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....submitted that in fact in the said decision also in para 5, the Hon'ble Supreme Court has observed that "there was no scope for issuing a notice unless the Legislature expressly gave power to the Income Tax officer to issue notice under the amended section notwithstanding the expiry of the period under the unamended provision or unless there was overlapping of the period within which notice could be issued under the old and the amended provision". 10.10. Mr. M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that the decision of the Hon'ble Supreme Court in the case of K.M. Sharma (supra), which has been heavily relied upon by the learned advocate appearing on behalf of the petitioners, shall not be applicable to the facts of the case on hand. It is submitted that in the aforesaid decision in the case of Ahmedabad Manufacturing & Calico Printing Co. Ltd. (supra) was not brought to the notice of the Hon'ble Court which is a Constitution Bench decision. It is submitted that, therefore, the decision in the case of Poolpandi Versus Superintendent, Central Excise, reported in MANU/SC/0339/1992 : 1992 (3) SCC 259 and decision in the case of....
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....ch quarter in accordance with the provisions of sub-section (3) of section 20; (2) Where the tax has not been paid as aforesaid after it is deducted, the amount of the tax together with the amount of simple interest thereon referred to in Sub-section (IA) shall be a charged upon all the assets of the person, or the company, as the case may be. referred to in sub- section(1)." 12.02. Subsequently, section 201 of the Act came to be amended. Sub-sections (3) and (4) came to be introduced w.e.f. 1/4/2010. Section 201 as amended by Finance Act No. 2 of 2009 w.e.f. 1/4/2010 reads as under : "201. (1) Where any person, including the principal officer of a company - (a) who is required to deduct any sum in accordance with the provisions of this Act; or (b) referred to in sub-section (IA) of section 192, being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such &....
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....) words "four years" came to be substituted by words "six years". Amended section 201(3) reads as under : 12.04. Subsequently, section 201(3)(ii) of the Act, was amended by Finance Act, 2012, with retrospective effect from 01/04/2010, whereby in sub-section (3), in clause (ii), for the words 'four years", the words "six years" shall be substituted. The amended Section 201(3) read as under: "201(3). No order shall be made under sub- section (1) deeming a person to be an assessee in default for failure to deduct the whole or any part of the tax from a person resident in India, at any time after the expiry of - (i) two years from the end of the financial year in which the statement is filed in a case where the statement referred to in section 200 has been filed: (ii) six years from the end of the financial year in which payment is made or credit is given, in any other case: Provided that such order for a financial year commencing on or before the 1st day of April, 2007 may be passed at any time on or before the 31st day March, 2011." 12.05. Subsequently, section 201(3) of the Act has been further amended by Finance Act No. 2 of 2014 w.e.f. 1/10/2014, which reads as und....
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....ently, the Income Tax Act does not provide for any limitation of time for passing an order u/s. 201(1) holding a person to be an assessee in default. In the absence of such a time limit, disputes arise when these proceedings are taken up or completed after substantial time has elapsed. In order to bring certainty on this issue, it is proposed to provide for express time limits in the Act within which specified order u/s. 201 (1) will be passed. It is proposed that an order u/s. 201(1) for failure to deduct the whole or any part of the tax as required under this Act, if the deductee is a resident taxpayer shall be passed within two years from the end of the financial year in which the statement of tax deduction at source is filed by the deductor. Where no such statement is filed, such order can be passed up till four years from the end of the financial year in which the payment is made or credit is given. To provide sufficient time for pending cases, it is proposed to provide that such proceedings for a financial year beginning from 1st April, 2007 and earlier years can be completed by the 31st March, 2011. However, no time-limits have been prescribed for order under Sub-sec....
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....financial year in which payment was made. 12.13. The reasons for amendment in section 201(3) so stated in the memorandum to the Finance Bill No. 2 of 2014 reads as under : "Tax Deduction at Source : Under Chapter X Vll-B of the Act. a person is required to deduct tax on certain specified payments at the specified rates if the payment exceeds specified threshold. The person deducting tax ("the deductor") is required to 'file a quarterly statement of tax deduction at source (TDS) containing the prescribed details of deduction of tax made during the quarter by the prescribed due date. Currently, a deductor is allowed to file correction statement for rectification/updation of the information furnished in the original TDS statement as per the Centralized Processing of Statements of Tax Deducted at Source Scheme, 2013 notified vide Notification No. 03/2013 : MANU/CUSN/0006/2013 dated 15th January, 2013. However, there does not exist any express provision in the Act for enabling a deductor to file correction statement. In order to bring clarity in the matter relating to filing of correction statement, it is proposed to amend section 200 of the Act to allow the deductor to file....
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....under section 201(1) of the Act shall be extended by one more year. The existing provisions of section 271H of the Act provides for levy of penalty for failure to furnish TDS/TCS statements in certain cases or furnishing of incorrect information in TDS/TCS statements. The existing provisions of section 271H of the Act do not specify the authority which would be competent to levy the penalty under the said section. Therefore, provisions of section 271H are proposed to be amended to provide that the penalty under section 271H of the Act shall be levied by the Assessing officer." 12.14. At this stage, it is required to be noted that earlier section 201(3) of the Act as amended by Finance Act, 2012 amended on 28/5/2012 was specifically made applicable retrospectively w.e.f. 1/14/2012, whereby limitation period was substituted from four years to six years for passing orders where TDS Statement had not been filed. However, section 201(3) of the Act as amended by Finance Act No. 2 of 2014, as mentioned in the memorandum of the Finance Bill No. 2 of 2014 is stated to have effect from 1st October, 2014. Thus, wherever the Parliament/Legislature wanted to make provisions applicable ret....
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....ity. We are also providing you the PAN of 9 pensioners which will help your good self to verify about the status of their Income Tax Return for the year 2007-08. The pension amount mentioned by your good self is exclusive of deduction available to pensioners under chapter VI of the I.T. Act, 1961. There is possibility that many of them may come out from tax purview after considering chapter VI deduction. 8. He contended that the point of limitation cannot be allowed to be raised at this stage and even if it is allowed, the matter is required to be remitted back to the authority and from the facts which emerges from the record he contended that the view taken regarding TDS is required to be upheld and TDS is to be deducted and since it is not deducted a serious error has been committed and notice was issued on the law which was in existence on the date of issuance of notice. 9. In our considered opinion, the law which was applicable on the completion of financial year is applicable in the facts of the case and for assessment year 2007-08, the assessment year will expire on 31st March, 2008 which was over. However, even if the view canvassed by Mr. Mathur, counsel for the responden....
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....le by it had been duly paid. Had Ravi Builder not paid tax on the amount which it had received from the assessee, the Revenue could surely saddle the assessee with the liability of payment of interest under the provisions of Section 201(1A) of the Act. But in the instant case, as Ravi Builder had already paid the tax on the income, in our opinion, there was no question of levying any interest on the assessee as the amount which was payable to the Revenue had been duly paid. In other words, we may say that the liability of the assessee-society to make deduction at source and pay the tax to the Revenue is not independent of the liability of the contractor or Ravi Builder to pay the tax. If assessment in relation to income of Ravi Builder, i.e., the contractor, had become final and no further tax was found due from Ravi Builder, that would put an end to the liability of the assessee- society and as the asses-see-society was not liable to make any payment of tax on behalf of the contractor, no amount of interest could be leviable under the provisions of Section 201(1A) of the Act. If one looks at the facts of the present case, it is not in dispute that Ravi Builder, on whose behalf the....