TaxTMI 
TaxTMI 
2019 (4) TMI 310
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.... sect ion 201(3) of the Act, For this, the assessee 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 circumst....
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....e Tribunal in assessee's own case for the assessment year 2012-13 in ITA No.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(....
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....the appellant himself has filed not one but multiple correction returns for this year which was accepted by the CPC 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 ....
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....tory action pursuant to filing of the correction statement is pending and has to be done de novo. For this Financial Year, it is not disputed that last corrected statement was filed for the said year on 30/01/2018, which requires processing and is subject to verification as Appropriate. 6.8 These facts have been brought on record to distinguish that the order 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 T....
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....ws: :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 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 ....
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....ee-in-default can be passed if limitation had already expired as on 01.10,2014. The relevant paragraph 15 & 16 of the decision of Hon'ble Gujarat High Court reads as under: 15. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, to the facts of the case on hand and more particularly considering the fact that while amending section 201 by Finance Act, 2014, it has been specifically mentioned that the same shall be applicable w.e.f. 1/10/2014 and even considering the fact that proceedings for F.Y. 2007-08 and 2008-09 had become 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 ....
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....Allahabad High Court in the case of Mass Awash (P) Ltd (supra), CIT Departmental Representative stated that the assessee's case is not hit by any proviso rather the assessee's case squarely falls under the amended proviso by Finance (No.2) Act 2014 with effect from 01.10.2014 i.e. section 201(3) of the Act. Ld CIT(DR) also stated that the CIT(A) has rightly brought into the light the corrected statements filed by the assessee which are statutorily to be filed by the assessee and acted upon by the Assessing Officer. In terms of above, the CIT Departmental Representative stated that 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 b....
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....ed. So far as the factual aspect of the issue is concerned, there is no dispute that in terms of section 200(3), the assessee has filed statements of TDS before the Department within the prescribed time. In fact, in the submissions made by the assessee as reproduced in Para-5.2 of the impugned order of the learned Commissioner (Appeals), the fact of filing of TDS statements by the assessee has been clearly brought out. Therefore, we have to proceed on the basis that in assessee's case, the statements of TDS have been filed. Keeping the aforesaid factual position in view it is necessary to examine 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....
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....of amended sub-section (3) by Finance Act, 2014, will apply to assessee's case or not. It is the case of the assessee that, since, clause (i) of sub-section (3) of section 201 is applicable to the assessee and the limitation period of two years has expired by the time the provision was amended by Finance Act, 2014, the extended period of limitation of seven years as per the amended provision will not apply. Whereas, it is the case of the Department that the amended sub-section (3) brought into the statute by Finance Act, 2014, will apply retrospectively, hence, the impugned order passed by the Assessing Officer within the period of 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 per....
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....ion 201, the Hon'ble Gujarat High Court, after extensively dealing on the issue of retrospective applicability of the provisions and applying the principles laid down by the Hon'ble Supreme Court in a number of cases, held as under:- "15.00. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, to the facts of the case on hand and more particularly considering the fact that while amending section 201 by Finance Act, 2014, it has been specifically mentioned that the same shall be applicable w.e.f. 1/10/2014 and even considering the fact that proceedings for F.Y. 2007-08 and 2008-09 had become 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....