AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 1453
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....remises situated at 4th Floor, Raheja Corner of Main Avenue and V P Road, Santacruz (West), Mumbai. During the course of survey, it was noticed that the assessee company has failed to deduct tax at source u/s 194C of the Act on the expenses claimed by it. Accordingly, a show cause notice was issued and served on the assessee on 24.09.2004 and the assessee was asked to furnish month-wise and party-wise breakup of the expenses. In response thereof, the assessee submitted written reply inter alia contending that provisions of section 194C of the Income Tax Act do not apply to the assesee's case as the agreement entered into by the assessee with distributors is a distribution agreement and not a broadcasting agreement; the payments made by the assessee are taxable in the hands of the payees, hence in the light of the law laid down by the Hon'ble Supreme Court in M/s Hindustan Coca Cola Beverages Pvt'Ltd. vs. CIT 293 ITR 226 SC, recovery of tax from the assessee is not permissible. However, the AO rejecting the contentions of the assessee declared the assessee to be an assessee in default u/s 201 of the Act in respect of a sum of Rs. 1,53,016/- being the amount of tax deductible and fur....
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....educted at source. 4. (a) The learned Commissioner of Income Tax (Appeals) erred in upholding the action of the Assessing Officer of levying interest under section 201 (1A) of the Act amounting to Rs. 2,06,137/- on the ground that payment of interest is mandatory. (b) The learned Commissioner of Income Tax (Appeals) erred in law in holding that though the assessee should not be held to be an assessee in default, the appellant would be liable to interest under section 201 (1A) of the Act for the period commencing from the date on which tax was deducted to the date on which tax is actually paid. 5. The appellant submits that the Assessing Officer be directed: (i) Order under section 201 (1) and 201 (1A) passed beyond one year from the end of the financial year in which proceedings under section 201 (1) were initiated which is barred by limitation and same ought to be cancelled. (ii) Order under section 201 (1) and 201 (1A) passed beyond four years from the end of the financial year in which is barred by limitation and same ought to be cancelled. (iii) Not to treat the payments made by the appellant to the distributors of signals as a contract for work falling within....
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....f justice. 5. On the other hand the Ld. departmental representative (DR) fairly admitted that in a similar situation the Tribunal has condoned the delay and heard the assessee's appeal pertaining to the A.Y. 2003-04 on merits. However, the Ld. DR opposed the application on the ground that the delay is inordinate. 6. We have heard the rival submissions and perused the relevant record including the decision of the coordinate Bench relied on by the assessee. The coordinate Bench has condoned the delay in filing appeal pertaining to the assessment year 2003-04, holding as under:- "6. Before proceedings further, we may herein observe that the present appeal filed by the assessee before us involves a delay of 658 days. The assessee explaining the reason for the aforesaid delay in filing of the appeal had filed an „Affidavit‟, dated 15.06.2016 of Shri Vineet Garg, director of the assessee company. That Shri Vineet Garg in his affidavit had deposed that though the order of the CIT(A)-14, Mumbai was handed over to Mr. Pravin Kadam, Deputy Manager of taxation of the holding company, viz. Hathway Cable and Datacom Ltd on 28.06.2014, at 805/806, Windsor Off. CST Road, Kal....
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....o be condoned, relied on the judgment of the Hon'ble Supreme Court in the case of Ramnath Sao Vs. Gobardhan Sao, (AIR 2002 Supreme Court 1021). The ld. A.R taking us through the aforesaid judgment of the Hon'ble Supreme Court submitted that the Hon'ble Apex Court while condoning a delay of 130 days involved in the said appeal, had taken support of its earlier judgment in the case of N. Balkrishnan Vs. M. Krishnamurthi (1998) 7 Supreme Court case, wherein a delay of 883 days was condoned by the Hon‟ble Apex Court. The ld. A.R took us through the observations recorded by the Hon'ble Supreme Court, and taking support from the same submitted that merely for the reason that some lapse was there on the part of the litigant in filing appeal within the stipulated time period would not justify the turning down of his plea and declining the admission of his appeal on the said count. It was submitted by the ld. A.R that the Hon'ble Apex Court had observed that where the explanation of the appellant does not smack of malafides or is not put forth as part of a dilatory strategy, the Courts must show utmost consideration to the suitor. It was thus submitted by the ld. A.R that keeping in v....
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....ccount of an inadvertent mistake on the part of the Shri Pravin Kadam, Deputy Manager (Taxation) of the holding company of the assessee, viz. Hathway Cable Datacom Limited, who on account of bonafide mistake on his part had failed to deliver the order of the CIT(A) for the year under consideration, viz. A.Y 2003-04 to the Chartered accountant for taking the necessary action. We find that the facts as had been deposed by the Managing Director of the assessee, viz. Shri Vineet Garg are found duly supported by the affidavit of Shri Pravin Kadam (supra), who had categorically admitted the fact that he had inadvertently failed to deliver the order of the CIT(A) to the Chartered accountant. We are of the considered view that keeping in view the aforesaid facts, coupled with the fact that on the same issue which was involved in the case of the assessee for the immediately two preceding years, viz. A.Y 2001-02 and A.Y: 2002-03, the appeals of the assessee were pending disposal before the Tribunal, therefore, it can safely be concluded that the assessee would not have benefited from delaying the filing of the present appeal before us. We are of considered view that keeping in view the judgm....
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....days in filing the present appeal in the interest of justice and allowed the Ld. counsel for the assessee to argue its case on merits. 8. At the outset, the Ld. counsel for the assessee submitted that the AO has passed the order u/s 201 (1) and 201(IA) beyond a period of one year from the end of the financial year in which the proceedings u/s 201 (1) were initiated. Hence, the order is not sustainable being barred by limitation. The Ld. counsel further submitted that the Mumbai Bench of the Tribunal has decided the identical issue in favour of the assessee in the assessee's own case, ITA No. 4112/Mum/2016 for the A.Y. 2003-04. Since, the facts of the present case and the issues involved are identical to that of the appeal pertaining to the assessment year 2003-04 aforesaid, the impugned order is liable to be quashed 9. On the other hand, the Ld. Departmental Representative (DR) relying on the order passed by the authorities below submitted that since there is no time limit prescribed under the Act, there is no legal infirmity in the impugned order passed by the Ld. CIT (A) to interfere with. 10. We have heard the rival submissions and also perused the material on record includin....
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....iod of limitation is prescribed, a statutory authority must exercise its jurisdiction within a reasonable period. What should be the reasonable period depends upon the nature of the statute, rights and liabilities there under and other relevant factors. Relying upon this decision, it is submitted by learned Counsel for the assessee that since Section 201 of the Act does not prescribe any period of limitation for initiating or for completing proceedings in declaring the assessee as an assessee in default, exercise of jurisdiction should commence insofar as the statutory authority is concerned within a reasonable period of time. We are unable to agree with learned Counsel for the Revenue inasmuch as the decision relied upon by him deals with reasonable time for completing the assessment or for completing the task on hand. In Bharat Steel Tubes Ltd. (1988) 70 STC 122 (SC) the question that arose before the Court (and which has been stated on page 130 of the report) is whether an order of assessment under Section 11(3) of the Punjab General Sales Tax Act, 1948 or Section 28(3) of the Haryana General Sales Tax Act, 1973 could now be completed or it would be barred by limitation. In ....
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....the view that four years would be a reasonable period of time for initiating action, in a case where no limitation is prescribed. The rationale for this seems to be quite clear if there is a time limit for completing the assessment, then the time limit for initiating the proceedings must be the same, if not less. Nevertheless, the Tribunal has given a greater period for commencement or initiation of proceedings." 32 Mr. Suresh Kumar submitted before us that the Delhi High Court judgment does not take note of the principle that when there is no limitation prescribed by the statute, the Court cannot read into the provision any time limit or restriction. In that regard he relied upon the judgment of the Honourable Supreme Court in the case of Ajaib Singh v/s Sirhind Cooperative Marketing Cum Processing Service Society Limited and another reported in (1999) 6 SCC 82. The issue before the Honourable Supreme Court in that case was whether there is any period of limitation prescribed for initiation of proceedings under Section 33C(2) of the Industrial Disputes Act, 1947. In that regard the Honourable Supreme Court noted the factual position, namely, that services of workman were termi....
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.... this Chapter on the sum paid to a resident or on the sum credited to the account of a resident shall not be deemed to be an assessee in default in respect of such tax if such resident - (i) has furnished his return of income under section 139; (ii) has taken into account such sum for computing income in such return of income; and (iii) has paid the tax due on the income declared by him in such return of income, and the person furnishes a certificate to this effect from an accountant in such form as may be prescribed:] [Provided further that] no penalty shall be charged under section 221 from such person, unless the Assessing Officer is satisfied that such person, without good and sufficient reasons, has failed to deduct and pay such tax.] [(1A) Without prejudice to the provisions of subsection (1), if any such person, principal officer or company as is referred to in that subsection does not deduct the whole or any part of the tax or after deducting fails to pay the tax as required by or under this Act, he or it shall be liable to pay simple interest, (i) at one per cent. for every month or part of a month on the amount of such tax from the date on which such tax was d....
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....eriod for the Assessee being declared as an Assessee in Default yet the Revenue will have to exercise the powers in that regard within a reasonable time. In such circumstances we are of the view that the Tribunal's order in this case does not suffer from any error of law apparent on the face of record or perversity warranting our interference in appellate jurisdiction. 36 We are also shown the judgment of the Calcutta High Court in the case of Bhura Exports Ltd. v/s Income Tax Officer (TDS), Ward 57(2) in G.A. No.1319 and ITAT No.118 and IT Appeal No.116/2011 and IT 1163/2011 decided on 30.08.2011. With respect and for the reasons indicated by us above we cannot agree with the view taken by the Division Bench of the Calcutta High Court. That decision overlooks the fundamental principles noted above. They need not be reiterated here." We further find that involving the identical facts the coordinate bench of the Tribunal in the assesses own case for the A.Ys. 2001-02 and 2002-03, marked as ITA No. 6996/Mum/2014 and ITA No. 4261/Mum/2014, vide its order dated 07.09.2016, taking cognizance of the fact that though the notice u/ss. 201(1)/201(1A) was issued by the A.O on 23.09.2....
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....nt case also, the Ld. CIT (A) has confirmed the order passed by the AO u/s 201 (1) and 201 (IA) of the Act against which the assessee has filed the present appeal. 2. The assessee has raised the following effective ground of appeal against the impugned order passed by the Ld. CIT (A):- 1. "The appellant submits that the order under section 201 (1) and 201 (1A) passed by the Assessing Officer beyond a period of one year from the end of the financial year in which proceedings under section 201 (1) were initiated was barred by limitation. The Appellant submits that even if no period of limitation is prescribed, the statutory powers must be exercised within a reasonable time. 2. Without prejudice to what stated above, the appellant submit that the order under sections 201 (1) and 201 (1A) passed by the Assessing beyond a period of four years from the end of financial was barred by limitation. The Appellant submits that even if no period of limitation is prescribed, the statutory powers must be exercised within a reasonable time. 3. (a) The appellant submits that the learned Commissioner of Income Tax (Appeals) erred in upholding the action of the learned Tax Recovery Officer (he....