TaxTMI 
TaxTMI 
2019 (4) TMI 310
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....sessee has raised the following three grounds for the assessment year 2010-11: "1. The Learned Commissioner of Income-Tax [Appeals} erred in holding that the Order passed under Section 201/201[1A} of Income-Tax Act, 1961 (the "Act") was within the time limit allowed under sub-section [3) to Section 201 of the Act. 2. On an identical position in facts and in law and in the circumstances, the Learned Commissioner of Income-Tan (Appeals) erred in not following the judgement of the ITAT, J Bench, Mumbai in case of the Appellant itself, for the AY 2012-13, holding that the impugned order under Section 201(1)/201(1A) for the AY 2012-13, wartime barred. 3. The Learned Commissioner of Income-Tan (Appeals), erred in law, by departing from the well-established principle of consistency particularly where, no demands have been raised and/or adverse orders have been passed on account of nondeduction of tax in respect of reimbursements made to the Appellant's Affiliates under section 194C of the Act, since inception of the Appellant Company." 3. Similar are the grounds in assessment year 2011-12 and facts and circumstances are also identical. Hence, we take up the facts from the asses....
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....o.980/Mum/2018 order dated 28.03.2018 but the CIT(A) noted that the assessee has filed correction statements even on 31.01.2018 and in view of the provisions of section 201(3), the time limit available with the Assessing Officer is seven years in terms of amendment carried out by the Finance Act (No.2), 2014 with effect from 01.10.2014 under the provisions of section 201(3) of the Act. The CIT(A) stated that the facts in assessment year 2012-13 and the relevant assessment year 2010-11 are different and distinguishable and hence, in such a situation, the reliance placed by the assessee on Tribunal's decision in own case is misplaced. The CIT(A) decided the issue against the assessee by observing in paras 6.1 to 6.8 as under: "6.1 I have gone through the facts of the case and the appellant's contention The appellant has submitted a factual details of its TDS statements filed u/s 200(3). Section 200 of the IT Act entails the duty of the person deducting tax. Section 200$) casts a onus on the deductor to prepare such statement and submit it on prescribed time. For clarification purposes, section 200(3) is reproduced below - "Duty of Person deducting tax 200(3.) Any person de....
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.... TDS and was also processed. The details of all such statements tiled u/s 200{3) are as follows . Sr No Financial Year Quarter Form Type Date of filing Remarks 1 2009-10 Q1 26Q 15-07-2009 REGULAR 2 2009-10 O2 26Q 14-10-2009 REGULAR 3 2009-10 O3 26Q 13-01-2010 REGULAR 4 2009-10 Q4 260 11-07-2010 REGULAR 5 2009-10 Q1 26O 24-04-2012 CORRECTION 6 2009-10 01 26Q 24-04-2.012 CORRECTION 7. 2009-10 Q1 2SQ 15-03-2013 CORRECTION 8. 2009-10 Q1 260 30-01-^018 CORRECTION 9 2009-10 01 26Q 30-01-2018 CORRECTION 10 2009-10 02 26Q 24-04-2012 CORRECTION 11. 2009-10 Q2 26Q 15-03-2013 CORRECTION 12 2009-10 Q2 26Q 30-01-2018 CORRECTION 13 2009-10 02 26Q 30-01-2018 CORRECTION 14. 2009-10 Q3 26Q 24-04-2012 CORRECTION 15 2009-10 O4 26G 15-03-2013 CORRECTION 16 2009-10 Q3 26O 30-01 -20 18 CORRECTION 17 2009-10 Q3 2GQ 30-01-2018 CORRECTION 6.4 Thus, it is seen that the appellant has been revising the original statement with correction statement on various dates. In fact, the last statement for the said year was filed on 30/01/2018. Once a correction statement is filed the inevitable effect is ....
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....rder passed by the Hon'ble Tribunal for the Assessment year 2012-13 did not have any occasion to consider this factual aspect in that appeal The facts for AY 2012-13 lie FY 2011-12) was as follows: Sr.No. F.Y. Form Type Date of filing Remarks 1. 2011-12 24Q 9.5.2012 Original 2. 2011-12 26Q 11.5.2012 Original 3. 2011-12 26Q 14.10.2011 Original 4. 2011-12 26Q 14.7.2011 Original 5. 2011-12 26Q 13.1.2012 Original 6. 2011-12 26Q 24.9.2012 correction Since, in AY 2012-13, the only correction statement was filed on 24/09/2012, the facts were different and distinguishable. In such a situation, the appellant's argument that the impugned order for this year is covered by the order of the Hon'ble Tribunal is misplaced The assessee has last filed the last correction statement on 30/01/2016 and thus, the impugned order dated 21.3.2016 by the AO is not time barred." Aggrieved, now the assessee is in appeal before the Tribunal. 7. We have heard the rival contentions and gone through the facts and circumstances of the case. Before us, ld Counsel for the assessee Shri F.B. Andhyarujina, Sr. Counsel argued that the impugned proceeding....
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....rovided that such order for a financial year commencing on or before the 1st day of April, 2007 may he passed at any lime on or before the 31s1 day of March, 2011. In the light of the aforesaid reasons, it is clearly established that the increased limitation period of seven (7) years under section 201(3), as amended by the Finance (No,2) Act, 2014, w,e.f. 1,10.2014, shall not apply retrospectively to orders which had become lime-barred under the old lime limit ( 2 years / 6 years ) set by the un-amended section 201(3). Hence, no order under section 201(1) of the Act, deeming the tax-deductor to be assessee-indefault could be passed, if limitation had already expired as on 1.10.2014. ln the present case, Sodexo has been filing the requisite TDS statements referred to in section 200 of the Act Therefore, clause (i) of erstwhile section 201 (3) will apply in the present case." 9. Ld Counsel for the assessee took us through the erstwhile sub-section (3) of section 201 which was substituted by the Finance (No.2) Act 2014 w. e. f 01.10.2014 and prior to this substitution sub-section(3) as amended by Finance (No.2) Act, 2012 with effect from 01.04.2010 reads as under: :3. No order ....
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....me time barred and/or for the aforesaid financial years, limitation under section 201(3)(i) of the Act had already expired on 31/3/2011 and 31/3/2012, respectively, much prior to the amendment in section 201as amended by Finance Act, 2014 and therefore, as such a right has been accrued in favour of the assessee and considering HC-NIC Page 62 of 64 Created On Tue Mar 22 01:53:00 IST 2016 62 of 64the fact that wherever legislature wanted to give retrospective effect so specifically provided while amending section 201(3) (ii) of the Act as was amended by Finance Act, 2012 with retrospective effect from 1/4/2010, it is to be held that section 201(3), as amended by Finance Act No.2 of 2014 shall not be applicable retrospectively and therefore, no order under section 201(i) of the Act can be passed for which limitation had already expired prior to amended section 201(3) as amended by Finance Act No.2 of 2014. Under the circumstances, the impugned notices / summonses cannot be sustained and the same deserve to be quashed and set aside and writ of prohibition, as prayed for, deserves to be granted. 16.. In view of the above and for the reasons stated above, all these petitions succeed. T....
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....t the proceedings are not time barred or not hit by limitation. 12. We find that the case laws relied on by the CIT Departmental Representative of the Hon'ble Allahabad High Court in the case of Mass Awash (P) Ltd (supra) is prior to amendment and relates to assessment year 2006-07. Similarly, the decision relied on by ld CIT Departmental Representative of the Hon'ble Calcutta High Court in the case of Bhura Exports Ltd vs ITO, (2011) 13 taxmann.com 162(Calcutta) also relates to assessment year 2002-03 and also prior to amendment. We find that the first amendment bringing time limitation in the statute book was brought out by the Finance (No.2) Act 2012 with effect from 01.04.2010 and that also the condition of two years or six years as per the provisions of section 201(3)(ii) of the Act. Subsequently, the erstwhile sub-section(3) of section 201 was substituted by Finance (No.2) Act, 2014 w. e. f. 01.10.2014, wherein, sub-section(3) of section 201 was amended and time limitation of seven years from the end of the financial years in which the payment is made was brought in. The facts of the present case are that the assessee filed quarterly returns for F.Y. 2010-11 on 15.07.2010. F....
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....xamine the relevant statutory provisions. Section 201 which lays down the consequences of failure to deduct tax at source or having deducted not remitted to the Government account, in its original form, did not provide any time limit for passing the order under sub-section (1) of section 201. Looking at the dispute arising out of proceedings being taken up and completed after lapse of substantial time in the absence of a time limit, the legislature through Finance Act, 2009, introduced sub- section (3) to section 201 providing limitation period of two years for passing the order under section 201(1) from the end of the financial year in which statement of TDS is filed by the deductor and in a case where no statement is filed the limitation was extended to before expiry of four years from the end of financial year in which the payment was made or credit given. The aforesaid amendment was made effective from 1st April 2010. Subsequently, by Finance Act, 2012, sub- section (3) of section 201 was again amended with retrospective effect from 1st April 2010. The aforesaid amended provision reads as under:- "(3) No order shall be made under sub-section (1) deeming a person to be an asse....
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.... seven years is valid. It is a fact on record that by the time the amended provisions of sub-section (3) was introduced by Finance Act, 2014, the limitation period of two years as per clause (i) of sub- section (3) of section 201 (the un-amended provision) has already expired. The learned Commissioner (Appeals) has applied the amended provision of sub-section (3) of section 201 by referring to the objects for making such amendment and on the reasoning that the said provision being a machinery provision will apply retrospectively. However, on a careful perusal of the objects for introduction of the amended provision of sub-section (3), we do not find any material to hold that the legislature intended to bring such amendment with retrospective effect. If the legislature intended to apply the amended provision of sub-section (3) retrospectively it would definitely have provided such retrospective effect expressing in clear terms while making such amendment. This view gets support from the fact that while amending sub-section (3) of section 201 by Finance Act, 2012, by extending the period of limitation under sub-clause (ii) to six years, the legislature has given it retrospective effe....
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....me time barred and/or for the aforesaid financial years, limitation under section 201(3)(i) of the Act had already expired on 31/3/2011 and 31/3/2012, respectively, much prior to the amendment in section 201 as amended by Finance Act, 2014 and therefore, as such a right has been accrued in favour of the assessee and considering the fact that wherever legislature wanted to give retrospective effect so specifically provided while amending section 201(3) (ii) of the Act as was amended by Finance Act, 2012 with retrospective effect from 1/4/2010, it is to be held that section 201(3), as amended by Finance Act No.2 of 2014 shall not be applicable retrospectively and therefore, no order under section 201(i) of the Act can be passed for which limitation had already expired prior to amended section 201(3) as amended by Finance Act No.2 of 2014. Under the circumstances, the impugned notices / summonses cannot be sustained and the same deserve to be quashed and set aside and writ of prohibition, as prayed for, deserves to be granted." 10. Following the aforesaid decision of the Hon'ble Gujarat High Court in Troykaa Pharmaceuticals Ltd. (supra) again expressed the same view. "7. Exami....