TaxTMI 
TaxTMI 
2019 (7) TMI 1932
X X X X Extracts X X X X
X X X X Extracts X X X X
....se of by this composite order. 3. We shall take up the appeal in ITA No.119/PUN/2019 for the assessment year 2009-10 as the lead case for adjudication. ITA No.119/PUN/2019 4. In this appeal, the assessee raised the following grounds :- "1] The learned CIT(A) erred in holding that the order passed u/s 201(1) / 201(1A) is valid in law without appreciating the same was barred by limitation. 2] The learned CIT(A) failed to appreciate that as per the relevant provisions of section 201, the learned A.O. ought to have passed the order u/s 201(1) / 201(1A) before 31.03.2014 and since the said order is passed on 29.03.2016, the same is clearly barred by limitation. 3] Without prejudice, the assessee submits that the learned CIT(A) erred in confirming the order of the A.O. in treating the assessee in default u/s 201 without appreciating that on the facts of the case, there was no reason to treat the assessee in default and the demand raised should have been deleted. 4] Assessee submits that wherever the payee have shown relevant income in its return of income and have also paid taxes thereon and as such the assessee cannot be treated as assessee i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the view that all cases where TDS was not deducted, had to be mentioned in the TDS return and appropriate flag of From No.15G/Form No.15H was needed to be filed mentioning the reason for not deducting the TDS. The Assessing Officer contended that by not deducting TDS, on the basis of incorrect Form No.15G & 15H filed by the depositors, the assessee bank had created a leakage of revenue and it was impossible on the part of the Department to find out whether such interest income had been properly offered to tax or not by the respective customers of the Bank. The Assessing Officer referred to Note-6 in Form No.15G as prescribed under the Income Tax Rules, 1962 and was of the view that the Rules have clearly cast responsibility on the deductor/payer to ensure that Form No.15G & 15H should not be accepted if the income credited or paid was likely to exceed the maximum amount not chargeable to tax. 8. The Assessing Officer noted that for this year, the interest on FDRs on which TDS was not deducted by the assessee bank was far in excess of the maximum amount not chargeable to tax and therefore the assessee bank was proposed to be treated as an "assessee in default". The Assessing O....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... para 5 and 5.1 of his order, dismissed the said legal ground relying on the decision of Pune Bench of the Tribunal in the case of Vodafone Cellular Ltd. (2018) 19 taxmann.com 466 (Pune-Trib). For the sake of completeness, the said para 5.1 of the order of the CIT(A) is extracted hereunder :- "5.1 Ground 1: The case of the appellant is that the order u/s 201(1) & 201(1A) is barred by limitation as it is passed beyond 2 years from the end of the FY in which the TDS returns were filed. This ground is identical to the additional ground 1 raised in case of Bank of India Miraj Branch in appeal no CIT(A)-1/10037/2016-17, which has been decided by me today. I have held in that decision of the appellant's Miraj Branch that the provisions of sec 201(3) as amended w.e.f 01/04/2014 would apply and the time limit available to the AO for passing orders u/s 201(1) would be 7 years from the end of the FY in which the payment was made. I have also held that there is no such time limit prescribed for the order u/s 201(1A). I have held so respectfully following the decision of the Hon'ble ITAT Pune bench in the case of Vodafone Cellular Ltd (2018) 91 taxmann.com 466 (Pune-Trib). Reference c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntion of the assessee on the ground that there was an amendment to sub section (3) by Finance Act, 2014 w.e.f. 01.10.2014. As per the amended provisions, the order u/s 201 could be passed within a period of 7 years from the end of the financial year in which the payment has been made. According to the learned CIT(A) the A.O. has passed the order on 29.03.2016 and at that point of time, the period of 7 years was available for passing the order u/s 201(1). Hence, he has held that the order passed u/s 201(1) is valid in law. 3.3] The assessee submits that the learned CIT(A) is not justified in holding that the order passed u/s 201(1) is within the limitation period. As stated above, as per the relevant provisions of sub section (3) of section 201, the A.O. was required to pass the order within a period of 2 years from the end of the financial year in which the statement u/s 200 was filed. Now, as per the said provisions, the time limit for passing the order was up-to 31.03.2014. The assessee submits that by the time the amended provisions of sub section (3) of section 201 was introduced from 01.10.2014, the limitation period of 2 years from the end of the relevant financial y....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the above referred cases has held that the order passed u/s 201(1) was barred by limitation since the time limit for passing the order had already expired before insertion of the amendment by Finance Act, 2014. Considering the above decisions, the assessee submits that in the present case the order passed u/s 201(1) is barred by limitation. 3.4] The ld. CIT(A) has referred to the decision of Hon'ble ITAT Pune in the case of Vodafone Cellular Ltd. [91 Taxmann.com 466]. The assessee submits that in that case, the concerned asst. year was 2009-10. The A.O. had passed order u/s. 201(1) on 15.03.2012. The assessee submitted that the order passed u/s. 201(1) was barred by limitation. Hon'ble ITAT held that the assessee had furnished the statements u/s. 200 for all the four quarters. It was held that the order u/s. 201(1) was required to be passed for the first three quarters by 31.03.2011 as per the provisions of subsection (3) of section 201. Since the order was passed on 15.03.2012, the same was held to be barred by limitation. As regards the 4th quarter, it was held by Hon'ble ITAT that since the extended time limit was available, the order passed u/s. 201 was withi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....art before us showing the passing date of the assessment order and the same is as under :- Sr No ITA NO. ASSESSMENT YEAR BRANCH DATE OF A.O. ORDER 1 ITA 119/PUN/2019 2009-10 PETH VADGAON 29-03-2016 2 ITA 123/PUN/2019 2009-10 SHAHUPURI 29-03-2016 3 ITA 138/PUN/2019 2010-11 ATPADI 24-03-2017 4 ITA 131/PUN/2019 2010-11 CHUYE 22-03-2017 5 ITA 122/PUN/2019 2010-11 ISLAMPUR 23-03-2017 6 ITA 126/PUN/2019 2010-11 JAYSINGPUR 23-03-2017 7 ITA 133/PUN/2019 2010-11 KAWATHE MAHANKAL 22-03-2017 8 ITA 139/PUN/2019 2010-11 MURGUD 22-03-2017 9 ITA 120/PUN/2019 2010-11 PETH VADGAON 22-03-2017 10 ITA 146/PUN/2019 2010-11 SANGLI 22-03-2017 11 ITA 144/PUN/2019 2010-11 SHAHUWADI 24/03/2017 Sr No ITA NO. ASSESSMENT YEAR BRANCH DATE OF A.O. ORDER 1 ITA 121/PUN/2019 2009-10 ISLAMPUR 30-03-2016 2 ITA 125/PUN/2019 2009-10 JAYSINGPUR 29-03-2016 3 ITA 127/PUN/2019 2009-10 MIRAJ 29-03-2016 4 ITA 135/PUN/2019 2010-11 AMRUTNAGAR 22-03-2017 5 ITA 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ORLE TARF THANE Q1 17/07/2009 02 16/10/2009 Q3 16/01/2010 Q4 24/05/2010 12 ITA 124/PUN/2019 2010-11 SHAHUPURI Q1 29/10/2009 Q2 18/12/2009 Q3 14/01/2010 Q4 06/05/2010 13 ITA 142/PUN/2019 2010-11 VISHRAMBAG Q1 12/08/2009 Q2 12/11/2009 Q3 20/01/2010 Q4 23/09/2010 14 ITA 145/PUN/2019 2010-11 VITE Q1 22/07/2009 Q2 13/11/2009 Q3 19/01/2010 Q4 28/04/2010 IN THE FOLLOWING CASES, TDS STATEMENT UNDER SEC. 200 HAVE BEEN FILED FOR FEW QUARTERS Sr No ITA NO Assessment Year Branch Quarter Date of filing 1 ITA 119/PUN/2019 2009-10 PETH VADGAON Q1 11/07/2008 Q4 12/06/2010 2 ITA 123/PUN/2019 2009-10 SHAHUPURI Q2 06/06/2012 Q3 13/06/2009 Q4 03/08/2010 3 ITA 138/PUN/2019 2010-11 ATPADI Q1 26/03/2010 Q2 16/04/2010 Q3 16/04/2010 4 ITA 131/PUN/2019 2010-11 CHUYE Q1 25/07/2009 Q2 27/10/2009 Q4 23/04/2010 5 ITA 122/PUN/2019 2010-11 ISLAMPUR Q1 03/08/2009 Q2 10/11/2009 Q3 20/01/2010 6 ITA 126/PUN/2019 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essing Officer/CIT(A). 17. We heard both the parties and perused the orders of the Assessing Officer/CIT(A), the decisions cited and the provisions of law. We find relevant to extract sub-section (3) of section 201 of the Act. (prior to amendment). The same 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 - (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 of March, 2011." 18. The above provisions are applicable to the year under consideration and they deal with two scenarios, namely, (i) where the statements of the TDS are filed in a financial year and (ii) where such TDS statements are not filed. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... limitation in these cases. Accordingly, the legal issue raised by the assessee is allowed. 22. Considering the relief on this legal issue, the other legal issues and other grounds on merits and their adjudication becomes academic exercise. Accordingly, the same are dismissed as academic. 23. In the result, all the three appeals are partly allowed as above. B. Time limits of appeals for the A.Y. 2010-11 - Filing of quarterly statement is in the financial years 2009-10 and 2010-11. 24. As seen from the table cited above (supra), the assessee filed the TDS statements for the assessment year 2010-11 for all the 11 appeals (i.e. ITA Nos.135, 136, 134, 129, 132, 143, 128, 140, 124, 142 & 145/PUN/2019) for all the 4 quarters. There are 11 appeals in this group and they relates to the assessment year 2010-11. In this bunch of 11 appeals, the financial year in which the TDS statements are filed, covers the financial years 2009-10 and 2010-11. Considering the fact, the last quarter of the statement is filed in the financial year 2010-11, the time limits available to the Assessing Officer to pass an order u/s 3(i) of section 201 of the Act is two years from the end of the said fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atement of TDS is furnished is 03.08.2010 for the relevant financial year 2010-11. Consequently, the due date for passing an order is 31st March, 2013. Thus, for this bunch of two appeals pertaining to assessment year 2009-10, the last due date for passing the order u/s 201(3)(i) of the Act is 31st March, 2013. In both the appeals, the order passed by the Assessing Officer on 29.03.2016 commonly i.e. subsequent to the said due date. Accordingly, this bunch of two appeals relating to assessment year 2009-10 has to be allowed on technical ground. Considering the relief, the adjudication of the other grounds/additional grounds becomes academic exercise. 31. In the result, both the appeals are partly allowed as above. D. Time limits for passing the order in respect of assessment year 2010-11 (9 appeals) of 11 group of cases where quarterly statements of TDS are not furnished for all the 4 quarters of the financial year. 32. The quarterly statements relevant to the assessment year 2010-11 in this bunch of 9 appeals (ITA Nos.138, 131, 122, 126, 133, 139, 120, 146 & 144/PUN/2019) were furnished during the financial years 200910, 2010-11 and 2011-12, as the case may be. C....