Asst.CIT,Circle - 14(1), Hyderabad V. M/s BA Continuum India Pvt Ltd.,(Formerly known as M/s. BA Continuum Solutions Pvt. Ltd.,), Hyderabad

ITA 210/HYD/2014

• Counselvise Citation: 21022514 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-05-2015
• Assessment Year: misc
• Appeal Filed On: 11-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAMAKRISHNA BANDI
• Assessee Lawyers: TA
• Section: 2; 201(1)

Judgement Text

ITA NOS 210 AND 211 OF 2014 BA CONTINUUM INDIA P LT D HYDERABAD PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER & SMT.ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NOS.210 & 211/HYD/2014 (ASSESSMENT YEAR: 2008-09) ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 14(1) HYDERABAD VS. M/S BA CONTINUUM INDIA PRIVATE LIMITED HYDERABAD PAN: AACCC 2310 C (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI RAMAKRISHNA BANDI, DR FOR ASSESSEE : SHRI TAPAN GUPTA DATE OF HEARING : 12.05.2015 DATE OF PRONOUNCEMENT : 15 .05.2015 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, J.M. THESE ARE REVENUE APPEALS AGAINST THE COMMON ORDER OF THE CIT (A), VIJAYAWADA, DATED 27.11.2013 PASSED FO R A.Y 2008- 09. SINCE COMMON ISSUES ARE INVOLVED IN THESE TWO A PPEALS, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E, M/S.BA CONTINUUM INDIA PVT. LTD (FORMERLY KNOWN AS BA CONT INUUM SOLUTIONS PVT. LTD) IS ENGAGED IN THE BUSINESS OF P ROVIDING IT AND ITES SERVICES TO ITS GROUP COMPANIES. THE ASSESSEE FILED E-TDS RETURN FOR THE 1 ST AND 2 ND QUARTERS OF FINANCIAL YEAR 2007-08 IN FORM NO.24Q. THE AO PASSED ORDERS U/S.201(1)/201(1A) OF THE ACT ON 13/02/2012 RAISING DEMANDS OF ITA NOS 210 AND 211 OF 2014 BA CONTINUUM INDIA P LT D HYDERABAD PAGE 2 OF 5 RS.1,09,79,673/- AND RS.91,05,577/- FOR THE 1 ST AND 2 ND QUARTERS RESPECTIVELY. 3. AGGRIEVED BY THESE ORDERS, THE ASSESSEE HAS FIL ED THE APPEALS FOR BOTH THE QUARTERS WITH THE FOLLOWING GR OUNDS OF APPEAL BEFORE THE CIT (A): 1) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER DATED 13 FEBRUARY 2012 PASSED BY THE LD AO U/S 201(1)/201(1A) OF THE INCOME TAX ACT, 1961 (THE ACT) IS TIME BARRED AS PER THE PROVISO OF SECTION 201(3) OF THE ACT AND THEREFORE, THE SAME IS LIABLE TO BE SET ASIDE. 2) WITHOUT PREJUDICE TO THE ABOVE GROUNDS 1 AND 2, THE LD AO WHILE PASSING THE ORDER UNDER SECTION 201(1)/201(1A) OF THE ACT: A) ERRED IN NOT PROVIDING ANY OPPORTUNITY TO THE APPELLANT BEFORE PASSING THE ORDER U/S 201(1)/201(1A) OF THE ACT. B) FAILED TO APPRECIATE THAT THE SHORT PAYMENT OF TAX DEDUCTED AT SOURCE (TDS) AND/OR LATE PAYMENT OF TDS, AS APPEARING IN THE TDS PROCESSING STATEMENT IS ONLY ON ACCOUNT OF CERTAIN MISMATCHES AND/OR ERRORS IN FILING OF E- TDS RETURN AND THERE IS NO ACTUAL SHORT PAYMENT OF TDS AND/OR LATE PAYMENT OF TDS. C) ERRED IN NOT CONSIDERING THE TAX PAYMENT INFORMATION (I.E. THE DETAILS OF TAX PAID AS PER OLTAS ETC.,) AVAILABLE WITH HIM AND CONCLUDED THAT THE APPELLANT IS AN ASSESSEE IN DEFAULT, ON ACCOUNT OF SHORT PAYMENT OF TDS AND/OR LATE PAYMENT OF TDS, DESPITE THE FACT THAT THE APPELLANT HAS DULY DEDUCTED AND DEPOSITED THE ENTIRE TAX AS PER THE PROVISIONS OF THE ACT. ITA NOS 210 AND 211 OF 2014 BA CONTINUUM INDIA P LT D HYDERABAD PAGE 3 OF 5 THE APPELLANT CRAVES LEAVE TO ADD TO/ALTER/AMEND/SUBSTITUTE ANY OF THE ABOVE GROUNDS OF APPEAL, AT ANY TIME, BEFORE OR AT THE TIME OF HEARING OF THE APPEAL, SO AS TO ENABLE THE APPELLATE AUTHORITY TO DECIDE THIS APPEAL ACCORDING TO LAW. 4. BEFORE THE CIT (A), IT WAS SUBMITTED THAT AS PER THE PROVISO TO SECTION 201(3) OF THE ACT, AN ORDER U/S 201(1) A ND 201(1A) OF THE ACT FOR THE FINANCIAL YEAR BEGINNING ON OR BEFO RE 1 APRIL 2007 IS REQUIRED TO BE PASSED BY 31 MARCH 2011. THE SAID PROVISO TO SECTION 201(3) IS REPRODUCED BELOW: PROVIDED THAT SUCH ORDER FOR A FINANCIAL YEAR COMM ENCING ON OR BEFORE THE 1 ST DAY OF APRIL, 2007 MAY BE PASSED AT ANY TIME ON OR BEFORE 31 ST DAY OF MARCH, 2011. SINCE THE ABOVE MENTIONED ORDER RELATES TO FINANCIA L YEAR 2007-08, THE TIME BARRING DATE FOR PASSING THE SAID ORDER WAS 31 MARCH 2011. AS THE ABOVE MENTIONED ORDER WAS PASSED BY AO ON 13 FEBRUARY 2012, WHICH IS LATER TH AN THE TIME BARRING DATE OF 31 MARCH 2011, THE SAID OR DER SHOULD BE TREATED AS NULL AND VOID. 5. THE LD CIT (A) HELD AS FOLLOWS: 5. I HAVE CAREFULLY GONE THROUGH THE SUBMISSIONS M ADE BY THE APPELLANT AND FOUND STRENGTH IN THE ARGUMENT OF THE LD AR. THE AO HAS PASSED ORDERS U/S 201(1)/201( 1A) FOR BOTH THE QUARTERS OF FINANCIAL YEAR 2007-08 ON 13/02/2012. BUT, AS PER PROVISO TO SECTION 201(3) O F THE ACT, THESE ORDERS SHOULD HAVE BEEN PASSED ON OR BEF ORE 31.03.2011. AS THE ORDERS PASSED BY THE AO ARE BARR ED BY LIMITATION, THEY ARE HELD TO BE BAD IN LAW AND A RE ANNULLED. 6. AGGRIEVED, THE DEPARTMENT IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL: ITA NOS 210 AND 211 OF 2014 BA CONTINUUM INDIA P LT D HYDERABAD PAGE 4 OF 5 1. THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH ON FACTS AND CIRCUMSTANCES OF THE CASE. 2. WHETHER ON FACTS AND CIRCUMSTANCE OF THE CASE, T HE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) WAS RIGHT IN HOLDING THAT STATEMENT FILED BY THE ASSES SEE CANNOT BE PROCESSED BEING TIME BARRED AS PER THE PROVISIONS OF SECTION 201(3) OF THE INCOME TAX ACT, 1961. 3. WHETHER ON FACTS AND CIRCUMSTANCE OF THE CASE, T HE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING 'THE FACT THAT AS PER JUSTIFICA TION REPORT ASSESSEE FILED THE REVISED STATEMENT ON 06.09.2011 AND AS PER THE AMENDED PROVISIONS, NO ORDER SHAH BE PASSED AFTER THE EXPIRY OF TWO YEARS FROM THE END OF FINANCIAL YEAR IN WHICH THE SAID STATEMENT IS FILED. 4. ANY OTHER GROUND ARISEN DURING THE COURSE OF PROCEEDINGS WITH THE PERMISSION OF THE HON'BLE BENCH . 7. THE LD DR POINTED OUT THAT THE ALTERNATE GROUND RAISED BY THE ASSESSEE HAS NOT BEEN CONSIDERED BY THE CIT (A) . WE FIND THAT THE LD AR FOR THE ASSESSEE WHO APPEARED BEFORE THE CIT (A) HAS NOT DISCUSSED THIS GROUND BEFORE THE LD CIT (A) , OR EVEN IF HE HAD RAISED THE GROUND, THE ORDER OF THE CIT (A) DOE S NOT CONTAIN ANY DISCUSSION WITH RESPECT TO GROUND NOS. 2A TO 2C PREFERRED BEFORE THE CIT (A). 8. THE ASSESSEE HAS NOT FILED ANY CROSS OBJECTION A ND FAILED TO POINT OUT IN THE CROSS OBJECTION THAT THE ALTERNATE GROUND WAS NOT CONSIDERED BY THE CIT (A). HOWEVER, AT THE TIME OF HEARING OF THE DEPARTMENTAL APPEAL BEFORE US THE LD COUNSEL FO R THE ASSESSEE SHRI TAPAN GUPTA STATED THAT THE COMPANY H AD FILED THE REVISED E-TDS RETURN IN FORM 24Q Q1 OF THE FINA NCIAL YEAR ITA NOS 210 AND 211 OF 2014 BA CONTINUUM INDIA P LT D HYDERABAD PAGE 5 OF 5 2007-08 FOR RECTIFYING THE MISTAKES/ERRORS IN ITS O RIGINAL E-TDS RETURN. IT WAS BROUGHT TO OUR NOTICE THAT POST FILI NG OF SAID REVISED E-TDS RETURN, THE TAX DEMAND PAYABLE BY THE COMPANY HAS BECOME NIL AND THERE IS NO FURTHER TAX PAYABLE BY THE COMPANY. A COPY OF STATUS OF PAYMENT TDS TRACES WAS PRODUCED BEFORE US. 9. SINCE THE ALTERNATE GROUND RAISED BY THE ASSESSE E HAS NOT BEEN DISCUSSED BY THE CIT (A) OR THE AO, WE DEEM IT FIT IN THE CIRCUMSTANCES TO SET ASIDE THIS ISSUE TO THE FILE O F THE AO TO VERIFY WHETHER THE STATEMENT MADE BY THE LD COUNSEL BEFORE US IS CORRECT AND THEREAFTER DECIDE THE SAME IN ACCORDANC E WITH LAW. 10. IN THE RESULT, REVENUES APPEALS ARE ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MAY, 2015. S D/ - S D/ - (P.M. JAGTAP) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 15 TH MAY, 2015. VNODAN/SPS COPY TO: 1. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 14(1) B B LOCK 4 TH FLOOR, INCOME TAX TOWERS, AC GUARDS, MASAB TANK, HYDERABAD 2. M/S. BA CONTINUUM INDIA PVT. LTD (FORMERLY KNOWN AS M/S. BA CONTINUUM SOLUTIONS PVT. LTD) MINDSPACE RAHEJA I T PARK, BUILDING NO.5, HITECH CITY, MADHAPUR, HYDERABAD 500 081 3. THE CIT(A) VIJAYAWADA 4. CIT (TDS) HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE BY ORDER