ITO(TDS), Bhubaneswar V. Orissa Computer Application Centre, Bhubaneswar

ITA 224/CTK/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4376 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 22-06-2011
• Assessment Year: 1993-1994
• Appeal Filed On: 10-06-2010
• Court: TRIBUNAL
• Department Lawyers: PERTAINING TO AYS
• Section: 194C; 201(1)

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 224,225,226,227,228 AND 229/CTK/2010 C.NOS.18 TO 23/CTK/2010 (FILED BY ASSESSEE ) ( AYS 1993 - 94 ,1994 - 95,1995 - 96,1996 - 97,1997 - 98,1999 - 00) INCOME - TAX OFFICER (TDS), BHUBANESWAR. VERSUS ORISSA COMPUTER APPLICATION CENTRE, PLOT NO. N1/17D, ACHARYA VIHAR, BHUBANESWAR PAN: AAAAO 0246 R (APPELLANT) (RESPONDENT) FOR THE APPELLANT: S/ SHRI S.K.JENA AND SAMEER PARIJA, ARS FOR THE RESPONDENT SHRI A.K.PATRA, DR ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER : THESE APPEALS BY THE REVENUE PERTAINING TO THE AYS 1993 - 94 ,1994 - 95,1995 - 96,1996 - 97,1997 - 98,1999 - 00 ARE AGAINST THE CONSOLIDATED ORDER DT.30. 3.2010 OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) IN HOLDING THAT THE ORDERS PASSED U/S.201(1) AND 201(1A) OF THE I.T.ACT,1961 AS BARRED BY LIMITATION THOSE HAVING BEEN INITIATED AFTER 6 YEARS FROM THE END OF THE RELEVANT YEARS. THE ASSESSEE HAS A LSO FILED CROSS OBJECTIONS SUPPORTING THE IMPUGNED ORDER OF THE LEARNED CIT(A). 2. THE FACTS, IN BRIEF, ARE THAT DURING THE AYS UNDER CONSIDERATION, THE ASSESSEE HAD MADE PAYMENTS TO IDCO FOR CONSTRUCTION OF OCAC BUILDINGS. THE PROPOSAL FOR CONSTRUCTION WA S APPROVED BY THE STATE GOVERNMENT AND THE FUND HAS BEEN ALLOTTED BY THE STATE GOVERNMENT. THERE WAS NO CONTRACT SIGNED BY THE ORISSA COMPUTER APPLICATION CENTRE ( ASSESSEE ) AND IDCO FOR CONSTRUCTION OF THE BUILDING. THE ITO(TDS) WAS OF THE VIEW THAT EVEN I F IN THE CASE OF ORAL CONTRACT, PROVISION OF SECTION 194C WILL BE APPLICABLE AND SINCE THE ASSESSEE HAD NOT DEDUCTED TAX AT SOURCE ON SUCH PAYMENTS, HE DEMANDED THE TDS DUE U/S.201(1) AND ALSO INTEREST U/S.201(1A) VIDE HIS ITA NO.224,225,226,22 7,228 AND 229 /CTK/2010 C.NOS.18 TO 23/CTK/2010 (FILED BY ASSESSEE) 2 ORDER DT.18.12.2008. AGAINST THIS ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS). 3. BEFORE THE LEARNED CIT(A) BESIDES CHALLENGING THE MERIT OF THE CASE, THE ASSESSEE ALSO CHALLENGED THE VALIDITY OF THE ORDER PASSED BY THE ITO(TDS) BEING BARRED BY LIM ITATION BY WAY OF AN ADDITIONAL GROUND. THE LEARNED CIT(A) ADJUDICATING THE SAID ADDITIONAL GROUND AND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE MADE BEFORE HIM AND RELYING ON THE DECISION OF THE ITAT, CUTTACK BENCH IN THE CASE M/S.ORISSA SPONGE IR ON & STEEL LTD IN ITO NO.280/CTK/2009 DT.11.2.2010, HELD THAT THE IMPUGNED ORDER IS BARRED BY LIMITATION HAVING BEEN INITIATED AFTER 6 YEARS FROM THE END OF RELEVANT YEARS. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4 . THE LEARNED DR VEHEMEN TLY CONTENDED THAT O N THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT THE PROCEEDINGS U/S. 201(1) IS BARRED BY LIMITATION AS PRESCRIBED U/S. 149 IN VIEW OF THE RECENT DECISION OF CUTTACK BENCH OF ITAT, IN CASE OF M/S. O RISSA SPONGE IRON & STE EL LTD IN ITA NO. 280/CTK/ 2009 DT. 11.02.2010. IN THIS REGARD, THE DECISION OF THE ITAT, MUMBAI SPECIAL BENCH IN THE CASE OF MAHINDRA & MAHINDRA LIMITED VS. DCIT (2009) 122 TTK (MUMBAI) 577 HAS BEEN RELIED UPON. BUT IN THE CASE OF H INDUSTAN TIMES LIMITED VS. UNION OF INDIA [(1998) (SC2) - G.IX - 0005 - SC] THE APEX COURT RULED THAT WHEN NO PROVISION FOR LIMITATION HAS BEEN INCORPORATED IN THE STATUTE THEN THE COURTS CANNOT INTRODUCE SUCH LIMITATION. THE HONBLE APEX COURT IN BOMBAY GAS COM PANY LTD VS. GOPAL BHIVA & ORS (1963) (SC2) - GJX - 01 54 - SC] WITH THE SAME PROPOSITION HELD THAT IT WAS NOT PERMISSIBLE FOR THE COURTS TO INTRODUCE ANY SUCH TIME LIMIT. THE LIMITATION IS BEING ENFORCED BY FINANCE ACT, 2009 W.E.F. 1.4.2010. IN VIEW OF THE ABOV E, THE LEARNED DR PRAYED THAT THE ITA NO.224,225,226,22 7,228 AND 229 /CTK/2010 C.NOS.18 TO 23/CTK/2010 (FILED BY ASSESSEE) 3 IMPUGNED ORDER OF THE LEARNED CIT(A) BE SET ASIDE AND THAT OF THE ITO(TDS) BE RESTORED. 5. THE LEARNED AR OF THE ASSESSEE, ON THE OTHER HAND, SUPPORTED THE IMPUGNED ORDER OF THE LEARNED CIT(A). HE SUBMITTED THAT IN THE DEC ISION OF THE ITAT, CUTTACK BENCH IN THE CASE OF M/S. ORISSA SPONGE IRON & STEEL LTD (SUPRA), THE TRIBUNAL HAS RELIED ON THE DECISION OF ITAT, MUMBAI SPECIAL BENCH IN THE CASE OF MAHINDRA & MAHINDRA LTD., V. DCIT (2009) 122 TTJ (MUMBAI) 577, WHEREIN IT WAS HELD THAT NO PROCEEDINGS U/S.201(1) CAN BE INITIATED AFTER 6 YEARS. THEREFORE, THERE IS NO INFIRMITY IN THE IMPUGNED ORDER PASSED BY THE CIT(A) HAVING STOOD COVERED BY THE ABOVE DECISIONS OF ITAT. THE LEARNED AR OF THE ASSESSEE PRAYED TO DISMISS THE APPEAL S OF THE REVENUE AND ALLOW THE CROSS OBJECTION S FILED BY THE ASSESSEE BY UPHOLDING THE IMPUGNED ORDER OF THE LEARNED CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON OUR CAREFUL CONSIDERATION OF THE FACTS, WE ARE INCLINED TO UPHOLD THE IMPUGNED ORDER OF THE LEARNED CIT(A). IT IS NOT DISPUTED BY THE DEPARTMENT THAT THE PROCEEDING U/S.201 (1) 201(1A) FOR THE ASSESSMENT YEARS UNDER CONSIDERATION WAS INITIATED IN THE MONTH OF SEPTEMBER, 2008 AFTER A LAPSE OF MORE TH AN 6 YEARS FROM THE END OF RELEVANT YEARS. THE LEARNED CIT(A) CONSIDERING SUCH FACT HAS HELD THE SAME AS BARRED BY LIMITATION BY FOLLOWING THE DECISION OF THE ITAT, CUTTACK BENCH IN THE CASE M/S. ORISSA SPONGE IRON & STEEL LTD (SUPRA), WHICH HAD BEEN PASS ED BY FOLLOWING THE DECISION OF ITAT, SPECIAL BENCH, MUMBAI IN THE CASE OF MAHINDRA & MAHINDRA LTD., V. DCIT (2009) 122 TTJ (MUMBAI) 577. IN THE SAID CASE OF MAHINDRA & MAHINDRA LTD., THE ITAT, SPECIAL BENCH HAS CONSIDERED THE DECISIONS OF HINDUSTAN TIMES LIMITED VS. UNION OF INDIA [(1998) (SC2) - G.IX - 0005 - SC (SEE ALSO AIR 1998 SC 688)] AND BOMBAY GAS ITA NO.224,225,226,22 7,228 AND 229 /CTK/2010 C.NOS.18 TO 23/CTK/2010 (FILED BY ASSESSEE) 4 COMPANY LTD VS. GOPAL BHIVA & ORS (1963) (SC2) - GJX - 01 54 - SC] (SEE ALSO AIR 1964 SC 752), AS NOW RELIED ON BY THE LEARNED DR BEFORE US TO CONTEND THAT WHEN NO PROVISION FOR LIMITATION HAS BEEN INCORPORATED IN THE STATUTE, THEN THE COURTS CANNOT INTRODUCE SUCH LIMITATION, AND THE ITAT , MUMABI SPECIAL BENCH CAME TO THE CONCLUSION THAT NO PROCEEDINGS U/S.201(1) CAN BE INITIATED AFTER 6 YEARS. IN VIEW OF OUR ABOVE D ISCUSSIONS, WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER OF THE LEARNED CIT(A) HE HAVING FOLLOWED THE DECISION OF ITAT,CUTTACK BENCH AND ALSO THE DECISION OF ITAT, SPECIAL BENCH, MUMBAI, IN HOLDING THAT THE IMPUGNED ORDER IS BARRED BY LIMITATION HAVI NG BEEN INITIATED AFTER 6 YEARS FROM THE END OF RELEVANT YEARS. WE UPHOLD THE SAID ORDER OF THE LEARNED CIT(A) BY DISMISSING THE APPEALS OF THE REVENUE AND ALLOWING THE CROSS OBJECTIONS FILED BY THE ASSESSEE SUPPORTING THE ORDER OF THE LEARNED CIT(A). 7. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DISMISSED AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALLOWED. PRONOUNCED IN OPEN COURT ON DT. 23 RD JUNE, 2011 S D/ - S D/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOU NTANT MEMBER DATE: 23 RD JUNE, 2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: INCOME - TAX OFFICER (TDS), BHUBANESWAR. 2. THE RESPONDENT: ORISSA COMPUTER APPLICATION CENTRE, PLOT NO. N1/17D , ACHARYA VIHAR, BHUBANESWAR 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.