THE DCIT, CIRCLE - 3(1),(TDS), Vijayawada V. The Chief Engineer (O & M)/AP GENCO.,

ITA 733/VIZ/2013

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9621 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-03-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 26-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R.S. ARAVINDHAKSHAM
• Assessee Lawyers: M. CHANDRAMOULESWARA RAO
• Keywords: TDS
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 194C; 201(1); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI G. MANJUNATHA, HONBLE ACCOUNTANT MEMBER ITA NO. 733 / VIZ /201 3 (ASST. YEAR : 20 04 - 05 ) DCIT, CIRCLE - 3(1)(TDS), VIJAYAWADA. V . CHIEF ENGINEER (O & M)/ APGENCO , RAYALASEEMA THERMAL POWER PROJECT, V.V. REDDY NAGAR, KADAPA DISTRICT. T AN NO. HYDR02587E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M. CHANDRAMOULESWARA R A O - CA . DEPARTMENT BY : SHRI R.S. ARAVINDHAKSHAM - DR DATE OF HEARING : 2 0 / 1 0 /201 6 . DATE OF PRONOUNCEMENT : 23 / 12 /201 6 . O R D E R PER V. DURGA RAO , JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , VIJAYAWADA , DATED 11 /0 9 /201 3 FOR THE ASSESSMENT YEAR 2004 - 05. 2. I N THIS CASE, ASSESSEE IS A RAYALASEEMA THERMAL POWER PROJECT, KADAPA PAID AN AMOUNT OF RS. 13.20 CRORES TO M/S. BHEL ON 31/03/2004 TOWARDS ADVANCE FOR CARRYING OUT THE WORK OF ERECTION OF STAGE - II UNIT, BUT THE ASSESSEE HAS NOT DEDUCTED TDS AS REQUIRED UNDER SECTION 194C OF THE ACT. ACCORDINGLY , THE ASSESSING OFFICER PASS ED AN ORDER DATED 03/03/2009 , WHEREIN HE TREATED THE ASSESSEE AS THE 2 ITA NO. 733/VIZ/2013 ASSESSEE IS IN DEFAULT UNDER SECTION 201(1) AND ALSO LEVIED INTEREST UNDER SECTION 201(1A) OF THE ACT. 3 . BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER , ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), VIJAYAWADA , WHO VIDE HIS ORDER DATED 14/09/2010 ANNULLED THE ORDER OF THE ASSESSING OFFICER ON THE GROUND TH A T ORDER PASSED BY THE ASSESSING OFFICER DATED 03/03/2009 WAS BARRED BY LIMITATION AS IT WAS AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT FINANCIAL YEAR , IN WHICH DEFAULT WAS COMMITTED . 4 . BEING AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), THE DEPARTMENT HAS FILED FURTHER APPEAL BEFORE THE ITAT . THE ITAT DISMISSED THE APPEAL FILED BY THE DEPARTMENT VIDE ITS ORDER DATED 10/03/2011 IN ITA NO. 513/VIZA G / 2010 . SUBSEQUENTLY , THE ASSESSING OFFICER BY ISSUING A FRESH NOTICE , REVIEWED HIS OWN ORDER DATED 03/03/2009 BASING ON AN INSERTION OF NEW SUB - SECTION (3) TO SECTION 201 BY THE FINANCE ACT, 2009 W.E.F. 01/04/2010 WHEREBY IT WAS PROVIDED THAT ORDERS UNDER SECTION 201(1) IN RESPECT OF A F INANCIAL Y EAR COMMENCING ON OR BEFORE THE 1 ST DAY OF APRIL, 2007 CAN BE PASSED AT ANY TIME ON OR BEFORE 31/0 3/2011 . ACCORDINGLY , THE ASSESSING OFFICER PASSED A FRESH ORDER DATED 31/03/2011 . 5. BEING AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AND SUBMITTED THAT ONCE THE ORDER ALRE ADY PASSED BY THE ASSESSING OFFICER, THE SAME WAS ANNULLED BY THE COMMISSIONER OF 3 ITA NO. 733/VIZ/2013 INCOME TAX (APPEALS) AND CONFIRMED BY THE ITAT , THE ASSESSING OFFICER HAS NO POWER TO REVIEW HIS OWN ORDER. HE FURTHER SUBMITTED THAT THE ORDER PASSED BY THE ASSES SING OFFICER HAS TO BE QUASHED. 6 . THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE , THE SECOND ORDER PASSED BY THE ASSESSING OFFICER DATED 31/03/2011 QUASHED BY NOTING THAT THE ASSESSING OFFICER IS NOT CORRECT TO REVIEW HIS OWN ORDER AS THE SAME ISSUE HAS ALREADY BEEN ADJUDICATED BY THE COMMISSIONER OF INCOME TAX (APPEALS) AND HON'BLE ITAT. 7 . BEING AGGRIEVED, THE REVENUE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL . 8 . WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW . 9. THE ASSESSING OFFICER HAS PASSED AN ORIGINAL ORDER ON 03/03/2009 BY TREATING THE ASSESSEE IS IN DEFAULT UNDER SECTION 201(1) AND LEVIED PENALTY UNDER SECTION 201(1A) OF THE ACT. THE VERY SAME ORDER WAS ANNULLED BY THE COMMISSIONER OF INCOME TAX (APPEALS) ON THE GROUND TH A T THE ASSESSING OFFICER HAS NO POWER TO PASS O RDER AFTER EXPIRY OF FOUR YEARS , WHICH WAS CONFIRMED BY THE ITAT BY ORDER DATED 10/03/2011. THE ASSESSING OFFICER AGAIN BY ISSUING A FRESH NOTICE, PASSED THE ORDER DATED 31/03/2011 BY VIRTUE OF INSERTION OF NEW SUB - SECTION (3) TO SECTION 201 B Y FINANCE ACT, 2009 W.E.F. 01/04/2010 . THE VERY SAME ORDER HAS BEEN CONSIDERED BY THE COMMISSIONER OF INCOME TAX (APPEALS) AND HELD THAT ONCE THE ISSUE IS SETTLED BY THE 4 ITA NO. 733/VIZ/2013 COMMISSIONER OF INCOME TAX (APPEALS) AS WELL AS ITAT, THE ASSESSING OFFICER HAS NO POWER TO REVIEW THE SAME AND PASSED A DETAILED ORDER. THE RELEVANT PORTION OF THE ORDER IS EXTRACTED HEREUNDER: - 5. THERE IS ONLY ONE ISSUE IN APPEAL I.E., REVIEWING HIS OWN ORDER BY THE ASSESSING' OFFICER FO R THE PURPO SE OF APPLICATION OF INSERTION OF NEW SUB - SECTION (3) TO SECTION 201 OF THE ACT TO THE CASE OF THE APPELLANT, ONCE THE ORDER IS NULLIFIED BY THE CIT(APPEALS) AS WELL AS BY THE HON'BLE ITAT, ON THE BASIS OF LAPSE OF TIME LIMIT OF 4 YEARS FROM THE END OF THE FINANCIAL YEAR FOR PASSING AN ORDER. 5.1 THE ASSESSING OFFICER VIDE ORDER DATED 31.3.2011 STATED THAT IN THE LIGHT OF THE NEW PROVISIONS TO SECTION 201 OF THE ACT, THE ORDER U/S 201 & 201(1A) DATED 03.3.2009 HAS NO LEGAL EXISTENCE AFTER ITS NULLIFICATION BY THE ORDER OF THE CIT(APPEALS) DATED 14.9.2010. THE ASSESSING OFFICER HELD THAT WITH A VIEW TO PROTECT THE INTEREST OF REVENUE BY INVOKING THE NEW PROVISIONS OF SECTION 201(3) OF THE ACT WHICH PROVIDE FOR PASSING OF ORDER U/S 201(1) IN RESPECT OF FINANC IAL YEARS 2007 - 08 OR EARLIER YEARS ON OR BEFORE 31.3.2011, THE PROCEEDINGS IN QUESTION HAVE BEEN INITIATED AND LEVIED INTEREST U/S 201(1A) AMOUNTING TO RS.9,01,821/ - . 5.2 THE APPELLANT SUBMITTED THAT THE ASSESSING OFFICER HAS PASSED ORDER U/S 201 & 201(1A ) ON 03/03/2009 FOR THE DEFAULT COMMITTED BY THE APPELLANT DURING THE FINANCIAL YEAR 2003 - 047 HENCE, THERE IS A CLEAR LAPSE OF 4 YEARS PERIOD. THE SECOND APPEAL FILED BY THE DEPARTMENT WAS ALSO DISMISSED VIDE ORDER IN ITA NO.513/VIZAG/2010 DATED 10.3.2011 . 5.3 IN THE PRESENT CASE, THE ASSESSING OFFICER WITH AN INTENTION TO INVOKE THE PROVISIONS OF SUB - SECTION (3) TO SECTION 201 OF THE ACT, HAS REVIEWED HIS OWN ORDER DATED 3.3.2009 WHEREIN THE SUBJECTED VIEW WAS ALREADY HELD AGAINST HIM BY APPELLATE AUTHORITIES, BY ISSUE OF A SHOW - CAUSE NOTICE AND PASSED A FRESH ORDER U/S 201& 201(1A) ON 31.3.2011. THE ASSESSING OFFICER IS NOT CORRECT TO SAME ISSUE FOR THE SAME ASST. YEAR HAS ALREADY BEEN ADJUDICATED BY CIT(APPEALS) AND HON'BLE ITAT. IT IS NOT THE CAS E OF THE ASSESSING OFFICER TO PURVIEW THE JURISDICTION AND OVERVIEW THE ORDERS OF THE HIGHER AUTHORITIES. ACCORDINGLY, THE ORDER OF THE ASSESSING OFFICER IS LEGALLY NOT TENABLE. IN VIEW OF THE ABOVE , OUR INTERFERENCE IS NOT REQUIRED IN THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) , WHICH IS 5 ITA NO. 733/VIZ/2013 INCONSONANCE WITH THE ACT , HENCE, THE GROUND OF APPEAL RAISED BY THE REVENUE IS DISMISSED. 10 . IN THE RESULT, APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 3 R D DAY OF DECEMBER , 201 6 . S D / - S D / - ( G. MANJUNATHA ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 3 R D DECEMBER , 201 6 . VR/ - COPY TO: 1 . THE ASSESSEE. CHIEF ENGINEER (O & M)/ APGENCO, RAYALASEEMA THERMAL POWER PROJECT, V.V. REDDY NAGAR, KADAPA DISTRICT. 2 . THE REVENUE. DCIT, CIRCLE - 3(1)(TDS), VIJAYAWADA. 3 . THE CIT, VIJAYAWADA . 4 . THE CIT(A), VIJAYAWADA . 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., VISAKHAPATNAM