TaxTMI 
TaxTMI 
2019 (4) TMI 564
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....ware maintenance charges, Testing charges, Website maintenance charges, Personal management charges, Software expenses, reimbursement of Internet charges, etc. On the payments made for the aforesaid services, the assessee did not deduct tax at source. The Assessing Officer issued show cause notice to the assessee on 27-01-2012 under the provisions of section 201(1) and 201(1A) in respect of foreign remittance aggregating to Rs. 10,40,61,272/- without deduction of tax at source during the Financial Years 2007-08 to 2010-11. The Assessing Officer vide order dated 06-02-2014 passed u/s. 201(1) and 201(1A) of the Act, common for the assessment years 2008-09, 2009-10, 2010-11 and 2011-12 held that the aforesaid payments are in the nature of royalty/fee for technical services (FTS) under the provisions of section 9(1)(vi) and 9(1)(vii), respectively. Hence, it was mandatory for the assessee to deduct tax at source on such payments. The Assessing Officer raised total demand of Rs. 1,81,06,064/- (TDS + Interest) for the impugned assessment years for non compliance of the provisions of Chapter XVII-B of the Act. Aggrieved against the order dated 06-02-2014, the assessee filed appeal befor....
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....e points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction. 4.2 The Hon'ble Apex Court in various other decisions has taken similar view in accepting the explanation furnished by the assessee for condoning the delay in filing of appeal. Taking into consideration facts of the case, the law laid down by the Hon'ble Apex Court and the reasons furnished by the assessee/appellant, the delay of 878 days in filing of Cross Objections is condoned and the same is taken for adjudication on merits along with other appeals. 5. Since, the issue raised in all the appeals and Cross Objections by the assessee is identical and is arising from same set of facts, the appeal of assessee in ITA No. 1669/PUN/2014 for assessment year 2008-09 is taken as lead case. The assessee has raised legal issue as additional grounds in ITA No. 1669/PUN/2014 for assessment year 2008-09. The additional grounds of appeal raised by assessee are as under : "1 : 0 Re.: Validity of the Order passed u/s. 201(1) & 201(1A) of the Income-tax Act, 1961: 1 : 1 The Assessing Officer has erred in passing the impug....
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....of Hon'ble Bombay High Court was followed by the Tribunal in various subsequent decisions including Vodafone Cellular Ltd. Vs. Deputy Commissioner of Income Tax reported as 185 TTJ 245 (Pune-Trib.) and Hathway Cable and Datacome Limited Vs. The Tax Recovery Officer (TDS)- 1, Mumbai in ITA No. 1810/Mum/2014 for assessment year 2001-02 decided by Mumbai Bench vide order dated 01-06-2016. 6.2 The ld. AR contended that in the light of aforesaid decisions the order passed by the Assessing Officer dated 06-02-2014 is barred by limitation. The Assessing Officer should have passed order on or before 31-03-2013 i.e. within one year from the end of the financial year in which proceedings u/s. 201 are initiated. Since, the order is beyond the period of limitation the same is void ab initio and the subsequent proceedings arising there from are vitiated. 7. Per contra, Shri Pankaj Garg representing the Department vehemently defended the impugned order. The ld. DR submitted that as per the provisions of section 201(3) as it was applicable to the impugned assessment years, the order u/s. 201(1) could have been passed at any time after the expiry of six years from the end of financial year in wh....
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.... examine a question of law which arises from the facts already on record and have bearing on the tax liability of the assessee. In the light of law laid down by the Hon'ble Supreme Court of India in the case of NTPC Ltd. Vs. Commissioner of Income Tax (supra), the legal grounds raised as additional grounds of appeal by the assessee are admitted and are taken up for adjudication. 10. The assessee has raised legal ground challenging the validity of order passed u/s. 201 on the ground that it has been passed beyond the period of limitation of one year from the end of the financial year in which proceedings u/s. 201 of the Act are initiated. The undisputed facts are that the show cause notice u/s. 201 was issued to the assessee for the assessment years 2008-09 to 2011-12 on 27-01-2012. The order u/s. 201(1) and 201(1A) was passed on 06-02-2014. As per the assessee the due date for passing the order u/s. 201(1) and 201(1A) was 31-03-2013. Prior to April, 2010 there was no limitation period for passing the order u/s. 201 of the Act. The issue of limitation for passing the order u/s. 201(1) and 201(1A) was examined by the Special Bench of Tribunal in the case of Mahindra & Mahindra Ltd. ....
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.... 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) four 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 of March, 2011." After the insertion of sub-section (3) the same was amended by the Finance (No. 2) Act, 2014 w.e.f. 01-04-2014. The amended provisions of sub-section (3) reads as under : "(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 seven years from the end of the financial year in which payment is made for credit is given." 13. A bare perusal of sub-section (3) as it was inserted by the Finance Act, 2009 and subsequently amended by the Finance Act, 2014 would show that reference is to the payments made without deduction of....