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

ITA 4936/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88230 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• 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; Non-deduction of tax; 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.4936/MUM/2013, ) ) ) ) / ASSESSMENT YEAR-2007-08 ITO (TDS)-2(4), MUMBAI. VS. NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 /. ITA NOS.4974/MUM/2013, ) ) ) ) / ASSESSMENT YEAR-2007-08 ITO (TDS)-2(4), MUMBAI. VS. NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 /. ITA NOS.5058/MUM/2013, ) ) ) ) / ASSESSMENT YEAR-2008-09 NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 VS. ITO (TDS)-2(4), MUMBAI. /. ITA NOS.5059/MUM/2013, ) ) ) ) / ASSESSMENT YEAR-2008-09 NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 VS. ITO (TDS) - 2(4), MUMBAI. /. ITA NOS.4937/MUM/2013, ) ) ) ) / ASSESSMENT YEAR-2008-09 ITO (TDS) - 2(4), MUMBAI. VS. NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 /. ITA NOS.4975/MUM/2013, ) ) ) ) / ASSESSMENT YEAR-2008-09 ITO (TDS)-2(4), MUMBAI. VS. NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 *+ '$ *+ '$ *+ '$ *+ '$. .. . /. C.O.NO.191/MUM/2014(ARISING OUT OF ITA NO.4971/M/13 ), . . / A.Y.2004-05 NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 VS. ITO (TDS)-2(4), MUMBAI. *+ '$ *+ '$ *+ '$ *+ '$. .. . /. C.O.NO.195/MUM/2014(ARISING OUT OF ITA NO.4974/M/13 ), . . / A.Y.2007-08 NATIONAL HEALTH & EDUCATION SOCIETY (P.D.HINDUJA HOSPITAL & MEDICAL RESEARCH CENTRE) VEER SAVARKAR MARG, MAHIM, MUMBAI-400016 VS. ITO (TDS)-2(4), MUMBAI. *+ '$ *+ '$ *+ '$ *+ '$. .. . /. C.O.NO.196/MUM/2014(ARISING OUT OF ITA NO.4936/M/13 ), . . / A.Y.2007-08 2 ITA/4936/MUM/2013 & ORS HINDUJA HOSPITAL 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 $ $$ $ / ASSESSEE BY : SHRI S.C.TIWARI & MS. NATASHA MANG AT #( 3 2 $ / REVENUE BY : SHRI RAVINDER SINDHU 3 33 3 1 1 1 1 / DATE OF HEARING : 09-01-2015 4) 3 1 / DATE OF PRONOUNCEMENT : 06-02-2015 , 1961 1961 1961 1961 3 3 3 3 254 254 254 254( (( (1 11 1) )) )$ $ $ $ %1=1 '$> %1=1 '$> %1=1 '$> %1=1 '$> ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM $ $ $ $ '( '( '( '( #$%& #$%& #$%& #$%& $ $$ $ : CHALLENGING THE ORDERS OF THE CIT(A)-14,MUMBAI,ASSE SSING OFFICERS(AO.S)AND THE ASSESSEE HAVE FILED APPEALS FOR THE ASSESSMENT YEAR 2007-08 AND 2 008-09,RAISING VARIOUS GROUNDS OF APPEAL (GS.OA).ALL THE APPEALS DEAL WITH THE ORDERS PASSED BY THE AO.S.U/S.201(1)OR 201 (1A)OF THE ACT. FOR THE AY.2007-08,ONLY THE AO.S.HAVE FILED APPEALS .FOR THE AY.2008-09 CROSS APPEALS HAVE BEEN FILED BY THE ASSESSEE AS WELL AS THE AO.S.THE ASSESSEE HAD ALSO FILED CROSS-OBJECTIONS FOR BOTH THE AY.S.IN SOME OF THE APPEALS GROUNDS ARE ID ENTICAL EXCEPT FOR THE AMOUNTS INVOLVED. FIRST,WE WOULD LIKE TO REPRODUCE GROUNDS OF APPEAL FILED BY THE ASSESSEE AND THE AO. ITA NO. 4936/MUM/2013-AY.2007-08 A)ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN 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 CASE 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 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 31ST 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) W ITHOUT 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 3 ITA/4936/MUM/2013 & ORS HINDUJA HOSPITAL 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 IN COME-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) HAS ERRED IN DELETING THE TOTAL TAX DEMAND OF RS.3,59,9321- RAIS ED ON ACCOUNT OF PAYMENT MADE TO HINDUJA FOUNDATION AND OTHERS WHEREIN THE AO HAD AP PLIED THE PROVISIONS OF 194J INSTEAD OF 194C AS HAS BEEN INFRUCTUOUSLY APPLIED BY THE ASSES SEE WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HIMSELF ACCEPTED THE FLAW POINTED OUT BY T HE SURVEY TEAM AND STARTED APPLYING THE PROVISIONS OF SECTION 194J. G)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE DEMAND RAISED ON ACCOUNT OF PAYMENT MA DE TO HINDUJA TMT/ HINDUJA GLOBAL SOLUTION LIMITED AND DRUG HANDLING CHARGES TOTALING TO RS. 74,927/- (RS. 13,226/- + RS. 61,701/-)WHICH AMOUNT BEING NON-DEDUCTION OF TAX ON PAYMENT MADE, WITHOUT APPRECIATING THAT, THE FACT OF THE CASE CAME TO LIGHT DURING SUR VEY PROCEEDINGS ON 04.10.2010 SINCE TAKING INTO ACCOUNT THE SAME, AN ORDER U/S. 201(1) IS PASSED AN D TDS DEFAULT WAS WORKED OUT AND DETERMINED IN TERMS OF ORDER DATED 23.04.2011. H)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSEES CONTENTIONS AS CORRECT I N RESPECT OF DRUG HANDLING CHARGES BY APPLYING THE PROVISIONS OF SECTION 194C INSTEAD OF SECTION 194H AS CONCLUDED BY THE AO IN COURSE OF PROCEEDINGS U/S. 201(1)/201(1A) OF THE IN COME-TAX ACT, 1961 CHARGES WITHOUT APPRECIATING THAT THE FACT OF THE CASE CAME TO LIGH T 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. 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 SE T ASIDE AND THE A.O'S ORDER BE RESTORED. ITA/4974/MUM/2013-AY.2007-08 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'. ITA/5058/MUM/2013,AY.-2008-09 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT AND IN LAW LEARNED CIT(APPEALS) HAD ERRED IN NOT ANNULLING THE ORDER O F THE ASSESSING OFFICER AS HAVING BEEN BARRED BY LIMITATION OF TIME. 2.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT AND IN LAW LEARNED CIT(APPEALS) HAD ERRED IN OBSERVING THAT MOST OF TH E HOSPITAL-BASED CONSULTANTS ARE EMPLOYEES AND DIRECTING THE ASSESSING OFFICER NOT TO TREAT TH E APPELLANT TO BE IN DEFAULT ONLY IN CASES WHERE THERE IS NO CLAUSE REGARDING 'MONITORING OF THE PER FORMANCE AND ASSESSMENT ON A CONTINUOUS BASIS'. 3.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT AND IN LAW LEARNED CIT(APPEALS) HAD ERRED IN HOLDING THAT THE APPELLAN T SHALL BE ASSESSEE IN DEFAULT EVEN IN SUCH CASES WHERE THERE IS ALLEGED SHORT DEDUCTION OF TAX ON ACCOUNT OF THE PROVISION OF DEDUCTION OF TAX 4 ITA/4936/MUM/2013 & ORS HINDUJA HOSPITAL OTHER THAN THE PROVISION BONA FIDE APPLIED BY THE A PPELLANT. 4.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT AND IN LAW LEARNED CIT(APPEALS) HAD ERRED IN NOT APPRECIATING THAT THE APPELLANT CANNOT BE CONSIDERED AN ASSESSEE IN DEFAULT IN THE ABSENCE OF ANY TAX IN DEFAULT AND TH E ASSESSING OFFICER NOT BEING IN THE POSITION TO ADJUST THE TAX COLLECTED U/S 201(1) AGAINST ANY OUT STANDING TAX DEMAND. 5.THAT THE ORDER OF LEARNED CIT( APPEALS) BEING CON TRARY TO THE FACTS OF THE CASE, EVIDENCE AND MATERIAL ON RECORD AND LAW APPLICABLE THERETO SHOUL D BE SET ASIDE, AMENDED OR MODIFIED IN ACCORDANCE WITH THE GROUNDS OF APPEAL DEDUCED ABOVE . 6.EACH OF THE GROUNDS OF APPEAL ENUMERATED ABOVE IS INDEPENDENT OF AND WITHOUT PREJUDICE TO ONE ANOTHER. 7.THAT THE APPELLANT CRAVES LEAVE TO RESERVE TO ITS ELF THE RIGHT TO ADD TO, ALTER OR AMEND ANY OF THE AFORESAID GROUNDS OF APPEAL AT OR BEFORE THE TIME O F HEARING AND TO PRODUCE SUCH FURTHER EVIDENCE, DOCUMENTS AND PAPERS IN SUPPORT OF ITS CLAIM AS MAY BE NECESSARY. ITA/5059/MUM/2013,AY.-2008-09 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE OF THE APPELLANT AND IN LAW LEARNED CIT(APPEALS) HAD ERRED IN NOT ANNULLING THE ORDER O F THE ASSESSING OFFICER AS HAVING BEEN BARRED BY LIMITATION OF TIME. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE OF THE APPELLANT AND IN LAW LEARNED CIT(APPEALS) HAD ERRED IN DIRECTING THE ASSESSING O FFICER TO FOLLOW HIS DIRECTIONS IN RESPECT OF HIS APPELLATE ORDER IN QUANTUM PROCEEDINGS U/S 201(1) O F THE ACT. 3.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT AND IN LAW LEARNED CIT(APPEALS) HAD ERRED IN HOLDING THAT THE CHARGING OF INTEREST IS CONSEQUENTIAL IN NATURE. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE OF THE APPELLANT AND IN LAW LEARNED CIT(APPEALS) HAD ERRED IN NOT APPRECIATING THAT THE APPELLANT CANNOT BE CONSIDERED AN ASSESSEE IN DEFAULT IN THE ABSENCE OF ANY TAX IN DEFAULT. 5.THAT THE ORDER OF LEARNED CIT( APPEALS) BEING CON TRARY TO THE FACTS OF THE CASE, EVIDENCE AND MATERIAL ON RECORD AND LAW APPLICABLE THERETO SHOUL D BE SET ASIDE, AMENDED OR MODIFIED IN ACCORDANCE WITH THE GROUNDS OF APPEAL DEDUCED ABOVE . 6.EACH OF THE GROUNDS OF APPEAL ENUMERATED ABOVE IS INDEPENDENT OF AND WITHOUT PREJUDICE TO ONE ANOTHER. 7. THAT THE APPELLANT CRAVES LEAVE TO RESERVE TO IT SELF THE RIGHT TO ADD TO, ALTER OR AMEND ANY OF THE AFORESAID GROUNDS OF APPEAL AT OR BEFORE THE TIME O F HEARING AND TO PRODUCE SUCH FURTHER EVIDENCE, DOCUMENTS AND PAPERS IN SUPPORT OF ITS CLAIM AS MAY BE NECESSARY. ITA/4937/MUM/2013,AY.2008-09: A)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE 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 AND OTHERS ON VERIFICATION OF THEIR APPOINTMENT LETTERS AS EMPLOY EES OF THE HOSPITAL AND REMUNERATION PAID TO HIM AND OTHERS IS NOT IN THE NATURE OF SALARY AND PROVI SIONS OF SECTION 192 OF THE I.T. ACT ARE NOT APPLICABLE IN THOSE CASES AND ALSO THE DIRECTION OF THE LD. CIT(A) APPEAL, TO THE ASSESSEE TO FURNISH COPIES OF APPOINTMENT LETTERS IN THE CASE OF SAID P ERSON AND OTHERS FOR VERIFICATION BEFORE THE A.O., IS UNJUSTIFIED AS THE SAME HAD ALREADY BEEN ASCERTA INED DURING SURVEY PROCEEDINGS AND DURING THE PROCEEDINGS U/S 201 (1) OF THE I.T. ACT, 1961; FROM APPOINTMENT LETTERS FILED BY THE ASSESSEE, IT CAN BE EASILY DEDUCED THAT THE REMUNERATION PAID TO THE SAID PERSONS IS SALARY AND THE SAME ATTRACTS PROVISIONS OF SECTION 192 AS AGAINST THE SECTION 19 4J OF THE ACT ADOPTED BY THE ASSESSEE. B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAD ERRED N DELETING THE TOTAL TAX DEMAND OF RS.8,30,664/- RAIS ED ON ACCOUNT OF PAYMENT MADE TO HINDUJA FOUNDATION AND OTHERS WHEREIN THE AO HAD APPLIED TH E PROVISIONS OF 194J INSTEAD OF 194C AS HAD BEEN INFRUCTUOUSLY APPLIED BY THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HIMSELF ACCEPTED THE FLAW POINTED OUT BY THE SURVEY TEAM AN D STARTED APPLYING THE PROVISIONS CT SECTION 194J. C)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAD ERRED IN DELETING THE DEMAND RAISED ON ACCOUNT OF PAYMENT MA DE TO HINDUJA TMT/HINDUJA GLOBAL SOLUTION LIMITED AND DRUG HANDLING CHARGES TOTALING TO RS. 1 ,07,70,503/-(RS.1,03,97,635/-+RS.3,72,868/-) WHICH AMOUNT BEING NON-DEDUCTION OF TAX ON PAYMENT MADE, WITHOUT APPRECIATING THAT, THE FACT OF 5 ITA/4936/MUM/2013 & ORS HINDUJA HOSPITAL THE CASE CAME TO LIGHT DURING SURVEY PROCEEDINGS ON 04.10.2010 SINCE TAKING IN :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. D)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAD ERRED IN HOLDING THAT THE ASSESSEES CONTENTIONS AS CORRECT I N RESPECT OF DRUG HANDLING CHARGES APPLYING THE PROVISIONS OF SECTION 194C INSTEAD OF SECTION 1 94H AS CONCLUDED BY THE AO IN COURSE OF PROCEEDINGS U/S. 201(1)/201(1A) OF THE INCOME-TAX A CT, 1961 CHARGES WITHOUT APPRECIATING THAT THE FACT OF THE CASE CAME TO LIGHT DURING SURVEY PR OCEEDINGS ON 04.10.2010 SINCE TAKING INTO ACCOUNT THE SAME, AN ORDER U/S. 201 (1) IS PASSED A ND 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) IS ERRONEOUS AND THE SAME BE SET ASIDE AND THE A.O'S ORDER BE RESTORED. ITA/4975/MUM/2013,AY.2008-09: 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'. CO./195/MUM/2014,AY.2007-08: 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 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 OTHER. C.O. NO.196/MUM/2014,AY.2007 - 08 1. THAT LEARNED CIT (APPEALS) HAD RIGHTLY HELD THAT THE ORDER UNDER SECTION 201/201(1A) MADE BY ITO (TDS) IN THE CASE OF THE RESPONDENT ON 24TH MAR CH 2011 IN RELATION TO ASSESSMENT YEAR 2007- 08 IS BARRED BY LIMITATION. 2. THAT LEARNED CIT(APPEALS) HAD ERRED IN NOT HOLDI NG THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE RESPONDENT AND IN LAW THE RESPON DENT SHOULD NOT BE DEEMED TO BE AN ASSESSEE IN DEFAULT AS HELD BY ITO (TDS) IN RESPECT OF THE PAYM ENTS MADE TO HOSPITAL BASED CONSULTANTS. 3. THAT LEARNED CIT(APPEALS) HAD ERRED IN NOT HOLDI NG THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE RESPONDENT AND IN LAW THE RESPON DENT SHOULD NOT BE DEEMED TO BE AN ASSESSEE IN DEFAULT AS HELD BY ITO (TDS) IN RESPECT OF THE PAYM ENTS MADE TO HINDUJA FOUNDATION. 4.THAT 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 RESPON DENT SHOULD NOT BE DEEMED TO BE AN ASSESSEE IN DEFAULT AS HELD BY ITO (TDS) IN RESPECT OF THE PAYM ENTS MADE TO HINDUJA TMT/HINDUJA GLOBAL SOLUTION LTD .. 5. THAT LEARNED CIT(APPEALS) HAD ERRED IN NOT HOLDI NG THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE RESPONDENT AND IN LAW THE RESPON DENT SHOULD NOT BE DEEMED TO BE AN ASSESSEE IN DEFAULT AS HELD BY ITO (TDS) IN RESPECT OF THE PAYM ENTS OF DRUG HANDLING CHARGES. 6. EACH OF THE GROUNDS OF CROSS-OBJECTION ABOVE IS WITHOUT PREJUDICE TO AND INDEPENDENT OF EACH OTHER. ITA/4936/MUM/2013: 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 6 ITA/4936/MUM/2013 & ORS HINDUJA HOSPITAL 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.7.36 CRORES UNDER FOUR HEADS FOR THE YEAR UNDER APPEAL.S UBSEQUENTLY,ORDER UNDER SECTION 201(1A)OF THE ACT WERE ALSO BEEN PASSED RAISING DEMAND OF RS. 3.97 CRORES UNDER THE HEAD INTEREST PAYABLE. 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM IT WAS CONTENDED THAT THE ORDERS PASSED BY THE AO U/S.201(1)AND 201(1A)WERE BARRED BY TIME LIMIT IN LIGHT OF THE CB DT CIRCULAR DT. 3RD JUNE, 2010,THAT THE RELATIO -NSHIP BETWEEN THE HOSPITAL BASED CONSULTANTS (HBCS )AND THE ASSESSEE WAS NOT OF EMPLOYEE- EMPLOYER,THAT IN THEIR CASES TDS WAS RIGHTLY DEDUCT ED U/S.194J,THAT PROVISIONS OF SECTION 192 WERE NOT APPLICABLE TO THE FACTS OF THE CASE,THAT P AYMENTS MADE BY THE ASSESSEE TO HINDUJA FOUNDATION,HINDJUA TMT/HINDUJA GOLBAL SOLUTION LTD. ,AGPOR MARKETING SOLUTIONS AND SAXONS BIOTCH WERE NOT COVERED BY THE PROVISIONS OF SECTIO N 194C OF THE ACT. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A ND THE ORDERS PASSED BY THE AO U/S.201(1)AND 201(1A)OF THE ACT,THE FAA REFERRED TO SECTIONS 201( 3) AND 201(4) OF THE ACT AND HELD THAT SAME HAD BEEN INSERTED IN THE STATUTE W.E.F. 01/04/2010 AND PROVIDED FOR LIMITATIONS FOR PASSING OF ORDERS UNDER SECTION 201(1) OF THE ACT,THAT THE TIM E PERIOD OF 'SIX' YEARS IN CLAUSE (II) OF SECTION 201(3) HAD BEEN SUBSTITUTED FOR 'FOUR' YEARS WITH R ETROSPECTIVE EFFECT FROM 01/04/ 2010 BY FINANCE ACT,2012,THAT SECTIONS 201 (3) AND 201(4) HAD BECOM E PART OF THE STATUTE WITH EFFECT FROM 01/04/ 2010,THAT SURVEY ACTION WAS CARRIED OUT ON 04/10/20 10, WHEN THE ABOVE SECTIONS WERE ALREADY ON THE STATUTE,THAT FOR THE AY.UNDER CONSIDERATION,AS PER CLAUSE (I) OF SECTION 201(3)THE LIMITATION PERIOD WAS TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT WAS FILED,THAT FOR THE YEAR UNDER APPEAL THE QUARTERLY (OR YEARLY) STA TEMENTS OF TDS AS PER THE PROVISIONS OF SECTION 206/200(3) WERE REQUIRED TO BE FILED WITHIN SUCH TI ME AS MAY BE PRESCRIBED,THAT AS PER THE RULES 31A AND 37 OF THE INCOME TAX RULES,1962 PRESCRIBED THAT SUCH TDS STATEMENTS(QUARTERLY/ YEARLY) WERE REQUIRED TO BE FILED ON 15 JULY(FOR THE FIRST QUARTER),15 OCTOBER(FOR THE SECOND QUARTER ),15 JANUARY(FOR THE THIRD QUARTER)AND 15 MAY OF THE SUC CEEDING FINANCIAL YEAR (FOR THE FOURTH QUARTER), THAT IF THE ASSESSEE HAD FILED SUCH TDS STATEMENTS THE YEARLY RETURN OR THE STATEMENT FOR THE FOURTH QUARTER WOULD HAVE BEEN FILED IN APRIL OR MAY, 2007 ,THAT THE LIMITATION FOR PASSING OF ORDER UNDER SECTION 201(1)WOULD BE TWO YEARS FROM THE END OF TH E SAID FINANCIAL YEAR WOULD BE 31/03/ 2010, THAT THE ORDER HAD BEEN PASSED ON 24/03/2011,THAT S AME WAS BEYOND LIMITATION PERIOD, PROVIDED THE APPELLANT PROVED THAT ITS CASE FELL UNDER CLAUS E (I) OF SEC. 201(3).AS THE ASSESSEE HAD NOT FURNISHED SUCH DETAILS,HE DIRECTED THE AO TO VERIFY FROM HIS RECORDS AS TO WHETHER THE APPELLANT HAD FILED THE NECESSARY QUARTERLY STATEMENTS IN TIM E. 4. BEFORE US,THE DEPARTMENTAL REPRESENTATIVE STATED TH AT ORDER PASSED BY THE AO U/S.201(1)AS WELL AS 201(1A)WERE WELL WITHIN THE TIME,THAT THE FAA WA S NOT JUSTIFIED IN HOLDING THAT THE ORDERS PASSED BY THE AO ON 24.03.2011 WERE BEYOND TIME LIM IT.AUTHORISED REPRESENTATIVE (AR)ARGUED THAT THE CASE WAS COVERED BY THE PROVISIONS OF SECT ION 201(3)OF THE ACT. 5. 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 DIREC TION TO THE AO TO FIND OUT THE DETAILS OF FILING 7 ITA/4936/MUM/2013 & ORS HINDUJA HOSPITAL 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. NEXT GROUND OF APPEAL (GAO-E)IS ABOUT PAYMENT MADE TO HOSPITAL BASED CONSULTANTS(HBCS) DURING THE YEAR UNDER CONSIDERATION.AO WAS OF THE O PINION THAT THE ASSESSEE 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 E MPLOYEE-EMPLOYER 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 ISSUE REGARDING PAYMENT TO HBCS.(ITA/5060 & OTHERS/ MUM/2013).WE HAVE RESTORED BACK THE ISSUE OF PAYMENT MADE TO THE HBCS.TO THE FILE OF TH E AO FOR FRESH ADJUDICATION.AS THE FACTS FOR THE YEAR UNDER APPEAL ARE IDENTICAL TO THE FACTS OF THOSE AY.S.,SO,FOLLOWING THOSE ORDERS WE ARE REMITTING BACK THE MATTER TO THE FILE OF AO WHO WOU LD DECIDE THE ISSUE AFRESH AFTER HEARING THE ASSESSEE.GROUND NO. E IS DECIDED IN FAVOUR OF THE A O,IN PART. 8 .GROUNDS NO.F,G AND H DEAL WITH PAYMENT MADE TO HIN DUJA FOUNDATION,/HINDUJA TMT/ HINDUJA GLOBAL SOLUTIONS LTD. AND PAYMENTS MADE UNDER THE H EAD DRUG HANDLING CHARGES.THE AO WAS OF THE OPINION THAT THE TDS WAS TO BE MADE AS PER THE PROVISIONS OF SECTION 194 C AND NOT UNDER THE SECTION 194 J/194 HH OF THE ACT. AS FAR AS ISSUES,OF PAYMENT MADE TO HINDUJA FOUNDAT ION/HINDUJA TMT/ HINDUJA GLOBAL SOLUTIONS LTD.OR THE PAYMENTS MADE UNDER THE HEAD DRUG HANDLI NG CHARGES,ARE CONCERNED WE HAVE DEALT THEM EXTENSIVELY,WHILE DECIDING THE APPEALS FOR THE AY.S.2009-10 TO 2011-12.(SUPRA).FOLLOWING THE SAME,WE DISMISS THE GROUNDS NO. F,G AND H ,RAISED BY THE AO. ITA/4974/MUM/2013: 9. THE MAIN ISSUE IN THE APPEAL PERTAINS QUASHING THE ORDER U/S 201(1A),BY THE FA,WHEREBY INTEREST WAS CHARGED ON THE SHORT DEDUCTION DETERMI NED U/S.201(1) BY THE AO.BEFORE US,THE DR 8 ITA/4936/MUM/2013 & ORS HINDUJA HOSPITAL ARGUED THAT THE FAA HAD ANNULLED THE ORDER WITHOUT APPRECIATING THE FACTS. 10. WHILE DECIDING THE ISSUE OF ANNULLING OF ORDER BY T HE FAA,WITH REGARD TO ORDER PASSED BY THE AO U/S.201(1)WE HAVE HELD AT PARAGRAPH NO.4 OF OUR ORDER THAT THE ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL INFIRMITY.FOLLOWING THE SAME, WE DISMISS THE EFFECTIVE GROUND OF APPEAL FILED BY THE AO FOR THE YEAR UNDER CONSIDERATION. ITA/5058/MUM/2013,AY.-2008-09 11. FIRST GROUND OF APPEAL FILED BY THE ASSESSEE IS ABO UT NOT ANNULLING THE ORDER PASSED BY THE AO U/S.201(1) OF THE ACT FOR THE YEAR UNDER APPEAL.DUR ING THE COURSE OF HEARING BEFORE US,THE AR CONTENDED THAT THE FAA SHOULD HAVE ANNULLED THE ORD ER,AS SAME WAS TIME-BARRED. WHILE DECIDING THE FIRST EFFECTIVE GROUND OF APPEAL (GOA-A TO C),RAISED BY THE AO,FOR THE YEAR UNDER APPEAL WE HAVE HELD THAT THE ORDER OF THE FAA DID NOT SUFFER FROM ANY LEGAL INFIRMITY.WE FOUND THAT HE HAD DIRECTED THE AO TO VERIFY DATES O F FILING OF QUARTERLY OR YEARLY RETURNS OF TDS FOR THE YEAR UNDER CONSIDERATION.IT IS A FACT THE A SSESSEE HAD NOT FILED DETAILS OF DATES OF FILING OF TDS RETURNS BEFORE THE AO OR THE FAA.THEREFORE,HIS DIRECTION FOR TO TAKE A DECISION AFTER VERIFICATION WAS JUSTIFIABLE.GROUND NO.1 RAISED BY THE ASSESSEE IS DECIDED AGAINST IT. 12. SECOND GROUND OF APPEAL IS ABOUT PAYMENT MADE TO HB CS.WHILE DECIDING THE APPEAL FILED BY THE AO WITH REGARD TO DEDUCTION OF TAX IN THE CASES OF HBCS,(AT PARAGRAPH 7),WE HAVE RESTORED BACK THE ISSUE TO THE FILE OF THE AO FOR RE-ADJUDIC ATION.GROUND NO.2 IS DECIDED IN FAVOUR OF THE ASSESSEE,IN PART. 13. NEXT TWO GROUNDS DEAL WITH TREATING THE ASSESSEE-IN -DEFAULT(A-I-D).AS PER THE ASSESSEE FOR SHORT DEDUCTION OF TAXES,IT COULD NOT BE HELD TO BE AN A-I-D.WHILE DECIDING THE APPEAL FILED BY THE AO WE HAVE CONFIRMED THE ORDER OF THE FAA ABOUT THE PAYMENTS MADE TO HINDUJA FOUNDATION/ HINDUJA TMT/ HINDUJA GLOBAL SOLUTIONS LTD. OR THE P AYMENTS MADE UNDER THE HEAD DRUG HANDLING CHARGES.IT HAS BEEN HELD THAT THERE WAS NO DEFAULT ON PART OF THE ASSESSEE IN DEDUCTING TAXES FOR THE ABOVE MENTIONED PAYMENTS.ISSUE OF THE PAYMENT TO HBCS HAS ALREADY BEEN RESTORED BACK TO THE FILE OF THE AO.IN THESE CIRCUMSTANCES G ROUND NO.3 AND 4 HAVE BECOME ACADEMIC IN NATURE AND HENCE SAME ARE ALLOWED FOR STATISTICAL P URPOSES.REST OF THE GROUNDS ARE GENERAL IN NATURE AND DO NOT NEED ADJUDICATION. ITA/5059/MUM/2013,AY.-2008-09 14. FIRST TWO GROUNDS OF APPEAL ARE ABOUT NOT ANNULLING THE ORDER OF THE AO AS HAVING BEEN BARRED BY LIMITATION OF TIME AND DIRECTION GIVEN TO THE AO TO FOLLOW CERTAIN INSTRUCTIONS.WHILE DECIDING THE IDENTICAL GROUND AT PARA NO.11 OF OUR ORDER WE HAVE DISMISSED THE GROUND.FOLLOWING THE SAME,WE DECIDE BOTH THE GROUNDS AGAINST THE ASSESSE E. 15. NEXT TWO GROUND ARE ALLOWED FOR STATISTICAL PURPOSE S FOLLOWING OUR ORDER AT PARAGRAPH NO.13. REST OF THE GROUNDS,BEING GENERAL GROUNDS,DO NOT RE QUIRE ADJUDICATION. ITA/4937/MUM/2013,AY.2008-09: 16. IN THE APPEAL FILED BY THE AO FOR THE YEAR UNDER CO NSIDERATION,HE HAD RAISED THE IDENTICAL ISSUES AS RAISED FOR THE PREVIOUS AY.FOLLOWING OUR ORDER F OR THE EARLIER AY.WE RESTORE THE ISSUE OF PAYMENT TO HBCS.TO THE FILE OF THE AO FOR FRESH ADJ UDICATION.GROUND NO. A) IS DECIDED IN FAVOUR OF THE AO,IN PART.FOLLOWING OUR ORDER FOR AY.2007-0 8,GROUNDS NO.B) C) AND D) ARE DECIDED AGAINST THE AO. ITA/4975/MUM/2013,AY.2008-09: 17. WE HAVE DECIDED THE IDENTICAL ISSUE AGAINST THE AO, WHILE DECIDING THE APPEAL FOR EARLIER YEAR. 9 ITA/4936/MUM/2013 & ORS HINDUJA HOSPITAL FOLLOWING THE SAME,WE REJECT THE EFFECTIVE GROUND R AISED BY HIM FOR THE YEAR UNDER CONSIDERATION. CO./195-196/MUM/2014,AY.2007-08 & 2008-09: 18. WE FIND THAT THE GROUNDS OF APPEAL RAISED IN THE CO .S.ARE EITHER SUPPORTING THE ORDER OF THE FAA OR HAVE BEEN ADJUDICATED BY US,WHILE DECIDING T HE APPEALS FILED BY THE AO/ASSESSEE FOR THE AY.S. 2007-08 AND 2008-09.THEREFORE,WE ALLOW THE CO .S FOR STATISTICAL PURPOSES. AS A RESULT,APPEALS FILED BY THE ASSESSEE ARE PARTL Y ALLOWED,CO.S.FILED BY IT ARE ALLOWED FOR STATISTICAL PURPOSES.APPEALS FILED BY THE AO STAND ALLOWED IN PART,EXCEPT THE APPEALS NO.4974- 75.BOTH THESE APPEALS STAND DISMISSED. 1? 01 3 @ A >1? (B1 3 # 1 C D *+ '$ EF3 G$HI $ #J K # 1$ C. 01 3 A- .4974 -75 $ ,> O $ #J 3 # 1 C.$ 'I A #J 3 # 1 C. ORDER PRONOUNCED IN THE OPEN COURT ON 06TH, FEBRUARY,2015 . '$> '$> '$> '$> 3 33 3 4) 4) 4) 4) $ $ $ $ % % % % A AA A K' K' K' K' 06.02. 201 5 3 33 3 = == = P PP P SD/- SD/- ( . / D.MANMOHAN) ( #$%& #$%& #$%& #$%& / RAJENDRA) !' / VICE PRESIDENT $ $ $ $ '( '( '( '( /ACCOUNTANT MEMBER / MUMBAI, K' /DATE: 06.02.2015. SK '$> '$> '$> '$> 3 33 3 *1Q *1Q *1Q *1Q R$Q)1 R$Q)1 R$Q)1 R$Q)1 / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / ./ 2. RESPONDENT / *+./ 3. THE CONCERNED CIT(A)/ S T , 4. THE CONCERNED CIT / S T 5. DR F BENCH, ITAT, MUMBAI / Q@ = *1 , . . % . 6. GUARD FILE/ = + Q1 + Q1 + Q1 + Q1 *1 *1*1 *1 //TRUE COPY// '$> / BY ORDER, / # DY./ASST. REGISTRAR , /ITAT, MUMBAI.