The ITO,TDS-2, Baroda V. M/s. Market Mover, Baroda

ITA 668/AHD/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6977 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-12-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 08-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Recovery proceedings
• Section: 201(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD 0 0 , 0 0 , BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI N.S. SAINI , ACCOUNTANT MEMBER ./ ITA NO . 668 / AHD/ 201 3 [ [ / ASSESSMENT YEAR : 20 03 - 04 THE INCOME TAX OFFICER, TDS - 2, BARODA VS M/S. MARKET MOVER, PROP. PARESH R. SHAH, 136, WINDSOR PLAZA, R.C. DUTT ROAD, BARODA PAN : AITPS 7870 B / (APPELLANT) / (RESPONDENT) REVENUE BY : SMT. SONIA KUMAR, SR. DR. ASSESSEE(S) BY : SMT. URVASHI S H ODHAN, AR / DATE OF HEARING : 02 / 12 /2014 / DATE OF PRONOUNCEMENT: 12 /1 2 /2014 / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - V I , BARODA DATED 05 . 12 .201 2 FOR THE ASSESSMENT YEAR 20 03 - 04 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT (A) ERRED IN DELETING THE ADDITION MADE U/S 201(1) OF THE INCOME - TAX ACT OF RS.2,92,736/ - AND INTEREST CHARGE U/S 201(1A) OF THE INCOME - TAX ACT OF RS.2,22,744/ - . 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS PAID RS.24,60,634/ - TO EIGHT PARTIES AS HOARDING RENT DURING THE PERIOD UNDER CONSIDERATION WITHOUT DEDUCTION OF ITDS ITA NO. 668/AHD/2013 MARKET MOVER FOR AY 2003 - 04 2 U/S 194I OF THE ACT , E VEN THOUGH THE RENT PAYMEN T TO EACH PARTY EXCEEDED RS.1,20,000/ - . THEREFORE, THE ASSESSING OFFICER HELD THAT THE ASSESSEE AS A N ASSESSEE IN DEFAULT FOR TDS U/S 201(1) OF RS.2,92,736/ - AND LIABLE FOR INTEREST U/S 201(1A) OF RS.2,22,744/ - . 4. ON APPEAL FILED BY THE ASSESSEE, CIT(A ) DELETED THE ADDITION BY FOLLOWING THE DECISIONS OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE S OF RAYMOND WOOLEN MILLS LTD VS. ITO [1996] 57 ITD 536 (BOM.), INDIAN RAYON & INDUSTRIES LTD. IN ITA NO.2479 (MUM) OF 2004 AND IN CASE OF RAYMOND LTD VS. DCIT [ 2003] 86 ITD 791 (MUM), WHEREIN IT WAS HELD THAT NOTICE U/S 201 & 201(1A) FOR RECOVERY OF TAX NOT DEDUCTED/SHORT DEDUCTED AND INTEREST THEREON CANNOT BE ISSUED BEYOND A PERIOD OF FOUR YEARS. THE CIT(A) ALSO PLACED RELIANCE ON THE DECISION OF THE HONBL E SUPREME COURT IN THE CASE OF STATE OF GUJARAT VS. PATEL RAGHAV NATH, AIR 1969 SC 1297, WHERE ALSO IT WAS HELD THAT IN CASE NO TIME LIMIT HAS BEEN PRESCRIBED IN THE STATUTE THEN THE PROCEEDING SHOULD BE INITIATED WITHIN THE REASONABLE TIME AND REASONABLE TIME HAS BEEN CONSIDERED AS FOUR YEARS. THE CIT(A), THEREFORE, HELD THAT SINCE IN THE INSTANT CASE THE ASSESSING OFFICER HAS ISSUED NOTICES AFTER FOUR YEARS FROM END OF THE FINANCIAL YEAR, THE ORDER PASSED BY THE ASSESSING OFFICER WAS VOID. 5. BEING AGG RIEVED BY THE AFORESAID ORDER OF THE CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 6. THE DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER, WHEREAS THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A) AND SUBMITTED THAT ON IDENTICAL FACTS IN THE CASE OF THE WIFE OF THE ASSESSEE SMT. BEENABE N P. SHAH, THIS TRIBUNAL HAS DELETED THE ADDITION VIDE ORDER DATED 26.07.2013 PASSED IN THE ASSESSMENT YEAR 2003 - 04 . SHE, THEREFORE, ITA NO. 668/AHD/2013 MARKET MOVER FOR AY 2003 - 04 3 PRAYED THAT FOLLOWING THE SAME THE APPEAL OF THE REVENUE SHOULD BE DISMISSED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER VIDE ORDER DATED 12.03.2009 PASSED U/S 201(1) AND 201(1A) WHICH IS BEYOND THE PERIOD OF FOUR YEARS FROM THE END O F THE RELEVANT FINANCIAL YEAR I.E. 2002 - 03 HELD THE ASSESSEE AS AN ASSESSEE IN DEFAULT FOR NON - DEDUCTION OF ITDS U/S 194I OF THE ACT OF RS.2,92,736/ - FROM THE PAYMENTS MADE TO EIGHT PARTIES FOR HOARDING RENT OF RS.24,60,634/ - . HE ALSO HELD THAT THE ASSESS EE IS LIABLE FOR INTEREST U/S 201(1A) FOR RS.2,22,744/ - . THIS ASSESSMENT ORDER OF THE ASSESSING OFFICER WAS HELD AS VOID BY THE CIT(A) ON APPEAL OF THE ASSESSEE BY OBSERVING THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS BEYOND FOUR YEARS FROM THE END OF THE RELEVANT FINANCIAL YEAR I.E. 2002 - 03. WHILE DOING SO, THE CIT(A) FOLLOWED THE DECISIONS OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE S OF RAYMOND WOOLEN MILLS LTD VS. ITO [1996] 57 ITD 536 (BOM.), INDIAN RAYON & INDUSTRIES LTD. IN ITA NO.2479 (M UM) OF 2004 AND IN CASE OF RAYMOND LTD VS. DCIT [ 2003] 86 ITD 791 (MUM), WHEREIN IT WAS HELD THAT NOTICE U/S 201 & 201(1A) FOR RECOVERY OF TAX NOT DEDUCTED/SHORT DEDUCTED AND INTEREST THEREON CANNOT BE ISSUED BEYOND A PERIOD OF FOUR YEARS. HE ALSO RELIE D UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GUJARAT VS. PATEL RAGHAV NATH (SUPRA) , WHEREIN IT WAS HELD THAT WHERE NO TIME LIMIT WAS PRESCRIBED REASONABLE TIME HAS BEEN CONSIDERED AS FOUR YEARS. THE AUTHORIZED REPRESENTATIVE OF THE ASSE SSEE FILED BEFORE US A COPY OF THE ORDER OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF WIFE OF THE ASSESSEE, SMT. BEENABEN P. SHAH (SUPRA), WHEREIN IT WAS HELD AS UNDER: - 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE PAYMENT ON WHICH THE ITA NO. 668/AHD/2013 MARKET MOVER FOR AY 2003 - 04 4 ASSESSEE WAS REQUIRED TO DEDUCT TDS PERTAINS TO FINANCIAL YEAR 2002 - 03. THE ORDER UNDER SECTION 201(1)/201(1A) WAS PASSED ON 31.03.2009 WHICH IS BEYOND PERIOD OF FOUR YEARS FROM THE END OF FINANCIAL YE AR. THE HON. DELHI HIGH COURT IN THE CASE OF CIT VS. HUTCHISON ESSAR TELECOM LTD. (SUPRA) HELD THAT PROCEEDINGS UNDER SECTION 201(1)/201(1A) WOULD BE INITIATED ONLY WITHIN 3 YEARS FROM THE END OF ASSESSMENT YEAR OR WITHIN 4 YEARS FROM THE END OF RELEVANT F INANCIAL YEAR. 8. BEFORE US, THE LEARNED D.R. HAS SUBMITTED THAT THE TIME LIMIT FOR PASSING THE ORDER UNDER SECTION 201(1)/201(1A) AS PER THE PROVISIONS OF SECTION 201 (3) (II) IS 6 YEARS FROM THE END OF FINANCIAL YEAR. WE HOWEVER FIND THAT THE AMENDMENT WITH RESPECT TO THE TIME LIMIT OF PASSING OF ORDER WITHIN SIX YEARS HAS BEEN MADE BY FINANCE ACT, 2012 WITH EFFECT FROM 1.04.2010. IN THE PRESENT CASE SINCE THE ASSESSMENT YEAR AND THE DATE OF PASSING OF ORDER U/S 201(1A) IS PRIOR TO THE DATE OF AMENDMENT, WE ARE OF THE VIEW THAT THE AMENDMENT MADE BY THE FINANCE ACT, 2012 WOULD NOT APPLY TO THE PRESENT CASE. WE THEREFORE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THUS DISMISS THIS GROUND OF REVENUE. 8. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE ASSESSEES CASE, THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE SMT. BEENABEN P. SHAH (SUPRA) SQUARELY APPLIES. THEREFORE, RESPECTFULLY FOLLOWING THE SAME, WE CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE GROUND OF THE APPEAL OF THE REVENU E. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE CO URT ON F R I D A Y , THE 1 2 T H OF DECEMBER , 2014 AT AHMEDABAD. SD/ - SD/ - ( G.C. GUPTA ) VICE PRESIDENT ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 1 2 /1 2 /2014 BIJU T., PS ITA NO. 668/AHD/2013 MARKET MOVER FOR AY 2003 - 04 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - VI, BARODA 5. , , / DR, ITAT, AHMEDABAD 6. [ / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD