ITO (TDS) 2(4), MUMBAI V. NATIONAL HEALTH & EDUCATION SOCIETY (P.D HINDUJA HOSPITAL AND MEDICAL RESEARCH CENTRE, MUMBAI

ITA 4935/MUM/2013

• Counselvise Citation: 493519914 RSA 2013
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 28-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAVINDER SINDHU
• Assessee Lawyers: S C TIWARI; NATASHA MANGAT
• Keywords: Period of limitation; Retrospective amendment; Time period of passing order
• Section: 133A; 194C; 201(1)

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - F BENCH. . , !'# !$%&' , %! () BEFORE S/SH.D.MANMOHAN, VICE-PRESIDEN T & RAJENDRA,ACCOUNTANT MEMBER /. ITA NOS.4935/MUM/2013, ! ! ! ! * * * * / ASSESSMENT YEAR-2006-07 ITO (TDS)-2(4), MUMBAI. VS. NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 PAN: AAATN0093Q /. ITA NOS.4973/MUM/2013, ! ! ! ! * * * * / ASSESSMENT YEAR-2006-07 ITO (TDS)-2(4), MUMBAI. VS. NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 +,!#% +,!#% +,!#% +,!#%. .. . /. C.O.NO.193,194/MUM/2014(ARISING OUT OF ITA NO.4935 & 4973/M/13), . . / A.Y.2006-07 NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 VS. ITO (TDS)-2(4), MUMBAI. ( !./ / APPELLANT) ( +,./ / RESPONDENT) !01 !01 !01 !01 2 2 2 2 % %% % / ASSESSEE BY : SHRI S.C.TIWARI & MS. NATASHA MANG AT !$) 3 2 % / REVENUE BY : SHRI RAVINDER SINDHU ! ! ! ! 3 33 3 1! 1! 1! 1! / DATE OF HEARING : 09-01-2015 4* ! 3 1! / DATE OF PRONOUNCEMENT : 10-02-2015 , 1961 1961 1961 1961 3 !! 3 !! 3 !! 3 !! 254 254 254 254( (( (1 11 1) )) )% %% % &1=1 (%> &1=1 (%> &1=1 (%> &1=1 (%> ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM %! %! %! %! () () () () !$%&' !$%&' !$%&' !$%&' % %% % ! ! ! ! : CHALLENGING THE ORDER DT. 30.03.2013 OF THE CIT(A)- 14, THE ASSESSING OFFICER (AO) HAS RAISED VARIOUS GROUNDS OF APPEAL WITH REGARD TO THE ORDERS PASSED BY THE AO U/S. 201(1) AND 201(1A) OF THE ACT.THE ASSESSEE HAS FILED CROSS OBJECTION FOR THE YEAR UNDER CONSIDERATION. ITA/4935/MUM/2013: A) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN QUASHING THE ORDER PASSED BY THE AO U/S. 201(1)/201(1A) BY RELYI NG ON THE CBDT CIRCULAR NO. 5 OF 2010 DATED 3RD JUNE, 2010 STATING THAT THE TDS PROCEEDINGS ARE NOT VALIDLY PENDING AND THEREBY TREATING THE ORDER U/S. 201(1)/201(1A) AS TIME BARRED ON THE GRO UNDS THAT AS PER CLAUSE (I) OF SECTION 201(3), THE LIMITATION FOR PASSING OF THE ORDER U/S. 201(1) WOULD BE TWO YEARS FROM THE END OF THE FINANCIAL YEAR 2005-06 I.E. 31.03.2008. SINCE THE ORDER IS PA SSED ON 24.03.2011, THE ORDER PASSED BY THE AO IS HELD BY THE CIT(A) TO BE BEYOND LIMITATION PERIO D WITHOUT APPRECIATING THE FACT THAT AS PER THE PROVISO TO SECTION 201(3), THE ORDER U/S. 201(1)/20 1 (1A) FOR A FINANCIAL YEAR COMMENCING ON OR BEFORE THE 151 DAY OF APRIL 2007 MAY BE PASSED AT A NY TIME ON OR BEFORE THE 31ST DAY OF MARCH 2011.THE CBDT CIRCULAR NO.5 REFERRED BY THE LD. CIT (A) IS ONLY CLARIFICATORY AND CANNOT OVER RIDE THIS STATUTE. B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAD ERRED IN HOLDING THAT THE ORDER PASSED BY THE A.O. U/S. 201( 1) DATED 24.03.2011 IS BEYOND LIMITATION PERIOD AS PER PROVISION OF SECTION 201 (3) OF THE I.T. ACT AND PROCEEDED TO ANNUL THE IMPUGNED ORDER WHEN THE LD. CIT(A) WAS AWARE OF THE FACT THAT A SURVEY ACTION U/S. 133A OF THE I.T. ACT IN THE CASE OF THE ASSESSEE HAD BEEN CONDUCTED ON 04.10.2010 AND ORDER U/S 201 (1) WAS PASSED ON 24.03.2011 2 ITA/4935/MUM/2013 & ORS NATIONAL HEALTH & EDUCATION SOC. (PD HINDUJA HOSPI TAL & RESEARCH CENTRE) WHICH IS WELL WITHIN THE TIME LIMIT SINCE SECTION 2 01 (3) OF THE I.T. ACT CLEARLY PROVIDES THAT SUCH ORDER FOR A FINANCIAL YEAR COMMENCING ON OR BEFORE THE 15T DAY OF APRIL, 2007, MAY BE PASSED AT ANY TIME ON OR BEFORE THE 3151 DAY OF MARCH. 2011 A ND HENCE, ORDER PASSED U/S. 201 (1) DATED 24.03.2011 IS VALID ONE C) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAD ERRED IN ANNULLING THE ORDER PASSED BY THE A.O. U/S. 201 (1 )/201 (1A) BY OBSERVING THAT THE IMPUGNED ORDER IS STATUTORILY BEYOND THE PERIOD OF LIMITATION WITHOUT APPRECIATIN G THE FACT THAT THE PROCEEDINGS UNDER THE SAID SECTION PURSUANT TO SURVEY STAND VALID FOR THE REAS ON THAT THE ASSESSEE HAD FILED INCOMPLETE TDS STATEMENTS U/S. 200 AS MANDATED UNDER THE INCOME-TA X ACT, 1961 WHICH FACT WAS UNEARTHED AND CAME TO LIGHT DURING THE SURVEY PROCEEDINGS OF THE DEPARTMENT. D) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAD ERRED IN ANNULLING THE ORDER PASSED BY THE A.O. U/S.201(1 )/201(1A) WI THOUT APPRECIATING THE FACT THAT AS PER CIRCULAR NO.5 OF 2010 ISSUED BY CBDT WHEREIN IT WAS CLARIFIE D THAT THE A.O. CAN COMPLETE TDS PROCEEDINGS FOR A FINANCIAL BEGINNING FROM 01.04.20 07 AND EARLIER YEAR'S BY 31.03.2011. IN OTHER WORDS BY VIRTUE OF ASSESSEES FILLING INCOMPLETE TDS STATEMENTS THE SURVEY AND THE PROCEEDINGS U/S. 201(1 )/201(1A) ARE VALIDLY PENDING BEFORE THE INCO ME-TAX AUTHORITIES. E) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAD ERRED IN NOT CONSIDERING THE TRUE FACTS UNEARTHED DURING SURVEY PROCEEDINGS U/S 133A DATED 04.10.2010 WITH RESPECT TO NOT TO TREAT THE HOSPITAL BASED CONSULTA NT DR. PHULRENU H. CHAUHAN AS EMPLOYEE OF THE HOSPITAL AND REMUNERATION PAID TO HIM IS NOT IN THE NATURE OF SALARY AND PROVISION OF SECTION 192 OF THE I. T. ACT IS NOT APPLICABLE IN THAT CASE AND AL SO THE DIRECTION OF THE LD. CIT(A) TO THE ASSESSEE TO FURNISH COPIES OF APPOINTMENT LETTER IN THE CASE OF SAID PERSON FOR VERIFICATION BEFORE THE A.O. IS UNJUSTIFIED SINCE, THE SAME HAD ALREADY BEEN ASCERT AINED DURING SURVEY PROCEEDINGS AND DURING THE PROCEEDINGS U/S 201 (1) OF THE I.T. ACT, 1961; FROM APPOINTMENT LETTER FILED BY THE ASSESSEE, IT CAN BE EASILY INFERRED THAT THE REMUNERATION PAID TO TH E SAID PERSON IS SALARY SUBJECTED TO TDS U/S. 192 AS AGAINST 194J OF THE ACT. F)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAD ERRED IN DELETING THE TOTAL TAX DEMAND OF RS. 3,52,314/- (RS. 2,94,05 8/- + RS 58,256/-) RAISED ON ACCOUNT OF PAYMENT MADE TO HINDUJA FOUNDATION AND NON- DEDUCTION OF TA X ON PAYMENT MADE ON ACCOUNT OF DRUG HANDLING CHARGES WITHOUT APPRECIATING THAT THE FACT OF THE CASE CAME TO LIGHT DURING SURVEY PROCEEDINGS ON 04.10.2010 SINCE TAKING INTO ACCOUNT THE SAME, AN ORDER U/S. 201 (1) IS PASSED AND TDS DEFAULT WAS WORKED OUT AND DETERMINED IN TERMS OF ORDER DATED 23.04.2011. G) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAD ERRED IN HOLDING THAT THE ASSESSEE'S CONTENTIONS AS CORRECT IN RESPECT OF DRUG HANDLING CHARGES BY APPLYING THE PROVISIONS OF SECTION 194C INSTEAD OF SECTION 194H, AS CONCLUDED BY THE AO IN THE COURSE OF PROCEEDINGS U/S. 201(1)/201(1A) OF THE IN COME-TAX ACT, 1961, WITHOUT APPRECIATING THAT, THE FACT OF THE CASE CAME TO LIGHT DURING SURVEY PR OCEEDINGS ON 04.10.2010, BY TAKING INTO ACCOUNT THE SAME, AN ORDER U/S. 201 (1) WAS PASSED AND TDS DEFAULT WAS WORKED OUT AND DETERMINED IN TERMS OF ORDER DATED 23.04.2011. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY AT THE TIME OF THE HEARING OF THE CASE OR THEREAFTER. 3. 'THE ORDER OF THE LD. CIT(A) BEING ERRONEOUS BE SET ASIDE AND THE A.O.'S ORDER BE RESTORED'. ITA/4973/MUM/2013: 1.'THE LD. CIT(A) ERRED IN QUASHING THE ORDER U/S 2 01(1A) WHEREBY INTEREST WAS CHARGED ON THE SHORT DEDUCTION DETERMINED U/S 201(1),BY OBSERVING THAT THE ORDER U/S 201(1) HAD BEEN ANNULLED AND ALSO ERRED IN NOT APPRECIATING THE FACTS THAT T HE ORDER OF THE LD. CIT(A) (ANNULLING THE SHORT DEDUCTION U/S 201(1) HAD NOT BEEN ACCEPTED BY THE D EPARTMENT AND APPEAL TO ITAT HAD BEEN FILED'. 2. 'THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER AN Y GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY AT THE TIME OF THE HEARING OF THE CASE OR THEREAFTER' 3. 'THE ORDER OF THE LD. CIT(A) BEING ERRONEOUS BE SET ASIDE AND THE A.O.'S ORDER BE RESTORED'. C.O/194/MUM/2014: FOLLOWING ARE THE GROUNDS OF APPEAL OF THE C.O. FIL ED BY THE ASSESSEE. 1.THE LEARNED CIT(APPEALS) HAD RIGHTLY HELD THAT TH E ORDER UNDER SECTION 201(1A) MADE BY ITO (TDS) IN THE CASE OF THE RESPONDENT ON 24TH MARCH 2 011 IN RELATION TO ASSESSMENT YEAR 2007-08 3 ITA/4935/MUM/2013 & ORS NATIONAL HEALTH & EDUCATION SOC. (PD HINDUJA HOSPI TAL & RESEARCH CENTRE) IS BARRED BY LIMITATION. 2. THE LEARNED CIT(APPEALS) HAD ERRED IN NOT HOLDIN G THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE RESPONDENT AND IN LAW THE RESPONDEN T IS NOT LIABLE TO ANY INTEREST UNDER SECTION 201(1A) OF THE ACT. EACH OF THE GROUNDS OF CROSS-OBJECTION ABOVE IS WIT HOUT PREJUDICE TO AND INDEPENDENT OF EACH. 2. THE ASSESSEE,A RENOWNED HOSPITAL OF MUMBAI,IS ENGAG ED IN THE ACTIVITY OF PROVIDING HEALTHCARE SERVICES AND DOING MEDICAL RESEARCH.IT IS MANAGED B Y NATIONAL HEALTH & EDUCATION SOCIETY POPULARLY KNOWN AS P.D.HINDUJA HOSPITAL & MEDICAL R ESEARCH CENTRE(HH).A SURVEY OPERATION UNDER SECTION 133A OF THE ACT WAS CARRIED OUT AT TH E HOSPITAL PREMISES OF THE ASSESSEE ON 04/10/ 2010 FOR VERIFICATION OF THE COMPLIANCE OF THE PROV ISIONS OF TAX DEDUCTION AT SOURCE (TDS).DURING THE COURSE OF SURVEY,STATEMENT OF DEEPAK SAMANT,DIR ECTOR(FINANCE)WAS ALSO RECORDED.AS A RESULT, PROCEEDINGS UNDER SECTION 201 (1) OF THE ACT WERE I NITIATED AND THE ASSESSEE WAS REQUIRED TO SHOW CAUSE AS TO WHY IT SHOULD NOT BE TREATED TO BE AN A SSESSEE-IN-DEFAULT(A-I-D)IN RESPECT OF CERTAIN PAYMENTS.THE ASSESSEE FURNISHED ITS REPLY AND VARIO US DETAILS AS REQUIRED BY THE AO.AFTER CONSIDERING THE SAME,THE AO PASSED THE ORDERS U/S.2 01(1) IN RESPECT OF VARIOUS ASSESSMENT YEARS, HOLDING IT TO BE AN ASSESSEE-IN-DEFAULT ON CERTAIN COUNTS AND HAD ACCOR DINGLY RAISED DEMANDS OF TAX AGAINST THE ASSESSEE U/S.201(1) OF THE ACT.TOTA L DEFAULT,U/S.201(1)WAS CALCULATED AT RS.5.77 CRORES FOR UNDER APPEAL.SUBSEQUENTLY,ORDER UNDER SE CTION 201(1A)OF THE ACT WERE ALSO BEEN PASSED RAISING DEMAND OF RS.3.81 CRORES UNDER THE H EAD INTEREST PAYABLE. 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA).BEFORE HIM, IT WAS SUBMITTED THAT T HE TIME LIMIT FOR MAKING ASSESSMENT U/S 201(1) FOR THE AY 2004-05 AND ONWARDS HAD EXPIRED.T HE ASSESSEE FILED A CHART IN THIS REGARD AND IT READ AS UNDER: SIX ASSESSMENT YEAR ALLEGED SHORT DEDUCTION RS. YEAR OF ALLEGED DEFAULT ACTION U/S 201 4.10.10 U/S 201 * LAW AS ON DATE OF DEFAULT WILL APPLY: BENETT COLEMAN & CO. LTD. V. V.P. DAMLE(1986) 157 ITR 812(BOM) 1 2004-05 04,92,61,089/- 31.03.04 *6YEARS TIME LIMI T FOR COMPLETION OF ASSESSMENT OVER 2 2005-06 05,46,47,787/- 31.03.04 *5 YEARS TIME LIM IT FOR COMPLETION OF ASSESSMENT OVER 3 2006-07 05,77,89,288/- 31.03.04 *4 YEARS TIME L IMIT FOR COMPLETION OF ASSESSMENT OVER IT WAS CONTENDED THAT SUBSEQUENT TO INSERTION OF PR OVISO TO SECTION 201(3) OR PRIOR TO THAT ORDER PASSED U/S. 201/201(A) WOULD NOT SURVIVE AS SAME WE RE AB-INITIO BAD IN LAW. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AN D THE ORDERS PASSED BY THE AO U/S. 201(1) AND 201(1A)OF THE ACT,HE HELD THAT SECTION 201(3) AND 2 01(4) HAD BEEN INSERTED IN THE STATUTE BY FINANCE ACT,2009 W.E.F. 01.04.2010.HE REFERRED TO T HE PROVISIONS OF SECTION 201(1) AND SECTION 153(3)(II) AND EXPLANATION 1.HE HELD THAT TIME PERI OD OF SIX YEARS IN CLAUSE-2 OF THE ABOVE SECTION 201(3) HAD BEEN SUBSTITUTED FOR FOUR YEARS WITH RET ROSPECTIVE EFFECT FROM 01.04.2010 BY FINANCE ACT, 2012, THAT SECTION 201(3) AND 201(4) HAD BECOM E PART OF THE STATUTE W.E.F. APRIL 2010, THAT THE SURVEY ACTION U/S. 133A WAS CARRIED OUT ON 04.10.20 10, THAT AT THAT POINT OF TIME ABOVE SECTION WERE PART OF THE STATUTE,THAT FOR THE FINANCIAL YEA R FROM 2004-05 TO 2006-07, AS PER CLAUSE (I) OF THE SECTION 201(3),THE LIMITATION PERIOD WAS TWO YEARS FROM THE END OF FY IN WHICH THE STATEMENT WAS FILED IN A CASE WHERE THE STATEMENT REFERRED TO IN SECTION 200 HAD BEEN FILED, THAT FOR THE FY.UNDER CONSIDERATION QUARTERLY/YEARLY STATEMENTS OF TDS WE RE REQUIRED TO BE FILED IN SUCH FORM AND VERIFIED IN SUCH MANNER AND WITHIN SUCH TIME AS PRO VIDED IN THE ACT,THAT IF THE ASSESSEE HAD FILED TDS YEARLY RETURN/STATEMENT OF THE 4TH QUARTER SAME WOULD HAVE BEEN FILED IN MAY OR JUNE 2005 4 ITA/4935/MUM/2013 & ORS NATIONAL HEALTH & EDUCATION SOC. (PD HINDUJA HOSPI TAL & RESEARCH CENTRE) AND APRIL OR MAY 2006 IN THE FY 2005-06 AND 2006-07 RESPECTIVELY,THAT THE LIMITATION FOR PASSING OF ORDER U/S. 201(1) WOULD BE TWO YEARS FROM THE EN D OF THE SAID FY I.E. 31.03.2008 AND 31.03. 2009 RESPECTIVELY,THAT IMPUGNED ORDER HAD BEEN PASS ED ON 24.03.2011,THAT SAME WAS BEYOND LIMITATION PERIOD. HE FURTHER MENTIONED THAT THE ASSESSEE HAD NOT FURN ISHED ANY DETAILS ABOUT THE FILING OF THE QUARTERLY/YEARLY STATEMENTS OF TDS. HE, THEREFORE, DIRECTED THE AO TO VERIFY FROM HIS RECORDS AS TO WHETHER IT HAD FILED THE NECESSARY QUARTERLY STATEM ENTS FOR THE FY 2005-06 AND 2006-07. HE HELD THAT IF THE QUARTERLY STATEMENTS AS REQUIRED U/S. 2 03 HAD BEEN FILED WITHIN THE DUE DATES THE ORDERS PASSED BY THE AO WERE INVALID AND HAD TO BE ANNULLE D. HE FURTHER MENTIONED THAT IF THE ASSESSEE HAD NOT FILED THE TDS STATEMENT AS PER LAW THEN ITS CASE WOULD FALL UNDER CLAUSE (II) OF SECTION 201(3) OF THE ACT AND THE TIME PERIOD OF 6 YEARS FR OM THE END OF THE FY.WOULD BE AVAILABLE WITH THE AO AND THE ORDERS PASSED BY HIM WOULD BE VALID ORDERS. AS STATED EARLIER, HE DIRECTED THE AO TO VERIFY THE FACTS AND FOLLOW HIS INSTRUCTIONS. 5. BEFORE US,THE DEPARTMENTAL AUTHORITY(DR)RELIED UPON THE ORDER OF THE AO.AUTHORISED REPRESENTATIVE(AR)STATED THAT ORDER PASSED BY THE A O WAS BEYOND THE PRESCRIBE TIME LIMIT. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE FAA HAS NOT GIVEN ANY DIRECT FINDING.HE HAD GIVEN DIRECTION TO THE AO TO FIND OUT THE DETAILS OF FILING OF QUARTERLY STATEMENTS FOR THE YEAR CONSIDERATION AND TO VERIFY FOR HIS RECORDS AS TO WHETHER THE ASSESSEE HAD FILED THE NECESSARY QUARTERLY STATEMEN TS(OR YEARLY TDS RETURN).HE FURTHER HELD THAT IF THE QUARTERLY STATEMENT AS REQUIRED UNDER SECTION 2 01(3) HAD BEEN FILED WITH THE DUE DATES,THE ORDER PASSED BY THE AO WAS INVALID AND HAD TO BE AN NULLED.HE ALSO MENTIONED THAT THE ASSESSEE HAD NOT FILED THE TDS STATEMENTS FOR THE YEAR UNDER APPEAL AS PER LAW THE CASE WOULD BE GOVERNED BY THE PROVISIONS OF SECTION 201(II)OF THE ACT AND THE IMPUGNED ORDER PASSED WOULD BE TREATED VALID.IN OUR OPINION,THE ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL INFIRMITY.PROVISIONS OF SECTION 201(3)WERE AMENDED AND WORD SIX YEARS WERE SUBSTITUTED BY WORDS FOUR YEARS WITH RETROSPECTIVE EFFECT FROM 1 ST APRIL,2010.SURVEY ACTION CARRIED OUT IN OCTOBER 20 10 AND THE AMENDMENT HAD COME ON STATUTE BEFORE SIX MONTHS.SO, THE FAA,IN OUR OPINION,HAS RIGHTLY INTERPRET -TED THE SECTION AND THE TIME LIMIT.HERE,IT WOULD B E USEFUL TO REFER TO CBCT CIRCULAR DATED 03.06. 2010 AND SAME READS AS UNDER: 'IT HAS BEEN PROVIDED THAT AN ORDER U/S 201(1) FOR FAILURE TO DEDUCT THE WHOLE OR ANY PART OF THE TAX AS REQUIRED UNDER THIS ACT, IF THE DEDUCTEE IS A RESIDENT TAXPAYER, SHALL BE PASSED WITHIN TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH T HE STATEMENT OF TAX DEDUCTION AT SOURCE IS FILED BY THE DEDUCTOR.WHERE NO SUCH STATEMENT IS FILED, S UCH ORDER CAN BE PASSED UP TILL FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE PAYMENT IS MADE,OR CREDIT IS GIVEN. TO PROVIDE SUFFICIENT TIME FOR PENDING CASES, IT IS PROVIDED THAT SUCH PR OCEEDINGS FOR THE FINANCIAL YEAR BEGINNING FROM 1ST APRIL, 2007 & EARLIER YEARS CAN BE COMPLETED BY THE 31.03.2011' AS THE CIRCULAR HAS CLARIFIED THE POSITION ABOUT TH E TIME LIMIT,SO,IN OUR OPINION NOW THERE IS NO SCOPE FOR ANY AMBIGUITY.TIME LIMIT DEPENDS UPON THE FILING OF QUARTERLY/YEARLY STATEMENT.THE FAA HAS EMPHASISED THE SAME POINT AND HAS DIRECTED THE AO TO MAKE VERIFICATION,AS STATED EARLIER.IN THESE CIRCUMSTANCES,WE ARE OF THE OPINIO N THAT THE ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL INFIRMITY.CONFIRMING HIS ORDER,WE DECIDE EFFECTIVE GROUND [GOA A) TO D)],PERTAINING TO TIME LIMIT AGAINST THE AO. 6. GROUNDS OF APPEAL NO.E)F)G)DEAL WITH PAYMENT MADE B Y THE ASSESSEE TO HOSPITAL BASED CONSULTAN -TS(HBCS)AND HINDUJA FOUNDATION.THE AO WAS OF THE O PINION THAT IT SHOULD HAVE DEDUCTED TAX AT SOURCE AS PER THE PROVISIONS OF SECTION 192 OF THE ACT,WHEREAS HH HAD MADE DEDUCTION U/S. 194J. THE AO WAS OF THE OPINION THAT THERE WAS EMPLOYEE-E MPLOYER RELATIONSHIP BETWEEN THE ASSESSEE AND THE HBCS. 7. WHILE DECIDING THE APPEALS FOR THE AY.S.2009-10 TO 2011-12,WE HAVE ELABORATELY DISCUSSED THE 5 ITA/4935/MUM/2013 & ORS NATIONAL HEALTH & EDUCATION SOC. (PD HINDUJA HOSPI TAL & RESEARCH CENTRE) ISSUE REGARDING PAYMENT TO HBCS.(ITA/5060 & OTHERS/ MUM/2013 DATED 06.02.2015).WE HAVE RESTORED BACK THE ISSUE OF PAYMENT MADE TO THE HBCS .TO THE FILE OF THE AO FOR FRESH ADJUDICATION. AS THE FACTS FOR THE YEAR UNDER APPEAL ARE IDENTICA L TO THE FACTS OF THOSE AY.S.,SO,FOLLOWING THOSE ORDERS WE ARE REMITTING BACK THE MATTER TO THE FILE OF AO WHO WOULD DECIDE THE ISSUE AFRESH AFTER HEARING THE ASSESSEE.GROUND NO. E IS DECIDED IN FAV OUR OF THE AO,IN PART. 8 .GROUNDS NO.F) & G)DEAL WITH PAYMENT MADE TO HINDUJ A FOUNDATION AND PAYMENTS MADE UNDER THE HEAD DRUG HANDLING CHARGES.THE AO WAS OF THE OP INION THAT THE TDS WAS TO BE MADE AS PER THE PROVISIONS OF SECTION 194 C AND NOT UNDER THE S ECTION 194 J/194 HH OF THE ACT. AS FAR AS ISSUES,OF PAYMENT MADE TO HINDUJA FOUNDAT ION AND PAYMENTS MADE UNDER THE HEAD DRUG HANDLING CHARGES,ARE CONCERNED WE HAVE DEALT T HEM EXTENSIVELY,WHILE DECIDING THE APPEALS FOR THE AY.S.2009-10 TO 2011-12.(SUPRA).FOLLOWING T HE SAME,WE DISMISS THE GROUNDS NO. F,AND G RAISED BY THE AO. ITA/4973/MUM/2013: 9. FOLLOWING OUR ORDER PASSED U/S.201(1)OF THE ACT,WE DECIDE THE EFFECTIVE GROUND OF APPEAL AGAINST THE AO,AS WE ARE OF THE OPINION THAT THE OR DER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL INFIRMITY. C.O/193, 194/MUM/2014: 10. FIRST GROUND OF APPEAL OF THE CO IS IN SUPPORT OF T HE ORDER OF THE FAA.WE HAVE ALREADY UPHELD THE ORDER OF THE FAA WHILE DECIDING THE ISSUE OF TI ME LIMIT.THRERFORE,GOA 1 IS DECIDED FOR STATISTICAL PURPOSES.CONSIDERING OUR DISCUSSION HEL D IN EARLIER PARAGRAPH,GROUND NO.2 IS ALLOWED IN FAVOUR OF THE ASSESSEE,IN PART. AS A RESULT,APPEAL FILED BY THE AO WITH REGARD TO 2 01(1)ORDER AND THE CO FILED BY THE ASSESSEE STAND PARTLY ALLOWED.APPEAL PERTAINING TO 201(1A)OR DER,FILED BY THE AO STANDS DISMISSED. 1? !01 ! 3 !! 201(1)% A* B (!C 3 = D !01 E!! (!C +,!#% > F % $G H! $!1! I. !01 ! 3 !! 201(1 A )% A* B (!C !$G 3 $!1 I. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH ,FEBRUARY,2015 . (%> 3 4* ! % &!! B H(! 10.02. 201 5 3 = J SD/- SD/- ( . / D.MANMOHAN) ( !$%&' !$%&' !$%&' !$%&' / RAJENDRA) !'# / VICE PRESIDENT %! %! %! %! () () () () /ACCOUNTANT MEMBER / MUMBAI, H(! /DATE:10.02.2015. SK (%> (%> (%> (%> 3 33 3 +1A +1A +1A +1A K%A*1 K%A*1 K%A*1 K%A*1 / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / !./ 2. RESPONDENT / +,./ 3. THE CONCERNED CIT(A)/ L M , 4. THE CONCERNED CIT / L M 5. DR F BENCH, ITAT, MUMBAI / AN!= +1 , . . &!! . 6. GUARD FILE/ =! ! ,!A1 ,!A1 ,!A1 ,!A1 +1 +1+1 +1 //TRUE COPY// (%>!! / BY ORDER, / ! $! DY./ASST. REGISTRAR , /ITAT, MUMBAI.