State Bank of India, Administrative Office, Surat V. The Income Tax Officer (TDS-2), Surat

ITA 881/AHD/2016

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1905 (ITAT-SURAT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 07-04-2016
• Court: TRIBUNAL

Judgement Text

STATE BANK OF INDIA IN ITA NOS: 881 TO 883 FOR A.YS 2010-11 TO 2012-13 PAGE 1 OF 6 INCOM TAX APPELLATE TRIBUNAL SURAT BENCH-SURAT BEFORE SHRI C .M. GARG, JUDICIAL MEMBER AND SHRI O. P. MEENA, ACCOUNTANT MEMBER I.T.A. NOS.881 TO 883/AHD/2016/SRT ASSESSMENT YEARS: 2010-11 TO 2012-13 STATE BANK OF INDIA, ADMINISTRATIVE OFFICE, GHOD DOOD ROAD, NR. BSNL OFFICE, SURAT 395 001. PAN: AAACS8577K TAN: SRTSO9194D V S . INCOME TAX OFFICER, (TDS-2), SURAT. APPELLANT /RESPONDENT [ /ASSESSEE BY: SHRI DIVYANG SHAH, CA /REVENUE BY: SHRI J.K.CHANDNANI, SR.DR / DATE OF HEARING: 14.03.2018 /PRONOUNCEMENT DATE: 2 0 .03.2018 ORDER PER O. P. MEENA, ACCOUTANT MEMBER: THESE THREE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) 3, DATED 28.01.2016 FOR THE ASSESSMENT YEARS 2010-11, 2011-12 AND 2012-13. 2. THE ASSESSEE HAS FILED REVISED AND CONDENSED GROUNDS OF APPEAL ON 01.02.2018. STATE BANK OF INDIA IN ITA NOS: 881 TO 883 FOR A.YS 2010-11 TO 2012-13 PAGE 2 OF 6 3. THE GROUND NO.1 STATES THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD.ASSESSING OFFICER HAS HEARD IN PASSING ORDER U/S.201(1) R.W.S. 201(1A) OF THE ACT WHICH IS TIME BARRED IN NATURE. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS WRONGLY ALLOWED EXEMPTION U/S.10(5) OF THE ACT ON PAYMENT OF LTC TO EMPLOYEES WHO HAVE TRAVELLED OUTSIDE INDIA AND THUS OUGHT TO HAVE DEDUCTED TDS ON SUCH PAYMENT. ACCORDINGLY, AN ORDER U/S.201(1) R.W.S. 201(1A) OF THE ACT WAS PASSED ON 23.02.2015 FOR VARIOUS QUARTER ENDING FALLING UNDER THE ASSESSMENT YEAR 2010-11, 2011-12 AND 2012- 13. 5. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER ON THIS ISSUE. HOWEVER, SOME PART RELIEF WAS ALLOWED IN RESPECT OF RATE OF DEDUCTION OF TDS AND RATE OF CHARGING OF INTEREST. 6. BEING AGGRIEVED, ASSESSEE FILED THIS APPEAL BEFORE US. 7. THE LD.COUNSEL FOR THE ASSESSEE TOOK US THROUGH THE PROVISIONS OF SECTION 201(3) OF THE ACT WHICH WAS INSERTED BY THE FINANCE ACT 2009 FOR THE FIRST TIME WHICH WAS PROVIDING TIME LIMITS FOR PASSING THE ORDER U/S.201(1) OF THE ACT. STATE BANK OF INDIA IN ITA NOS: 881 TO 883 FOR A.YS 2010-11 TO 2012-13 PAGE 3 OF 6 8. ACCORDING TO WHICH THE ORDER U/S.201(1) OF THE ACT CAN BE PASSED WITHIN TWO YEARS FROM THE END OF FINANCIAL YEAR IN WHICH RELEVANT STATEMENT OF TDS RETURNS FILED. IT WAS SUBMITTED THAT THE ASSESSEE IS GOVERNMENT OWNED BANK WHICH HAS FILED THE STATEMENT OF TDS RETURNS ON VARIOUS DATES FOR QUARTERS FALLING UNDER ASSESSMENT YEAR 2010-11 TO 2012-13. IT IS SUBMITTED THAT ALL THE BRANCHES OF SBI OF INDIA FILES CONSOLIDATED STATEMENT ITS MUMBAI OFFICE VIDE TAN: MUMS63193E. ACCORDINGLY, THE TDS RETURNS FOR ALL EMPLOYEES AT SURAT BRANCH WAS ALSO FILED THROUGH SAID TAN. THE LD.COUNSEL HAS SUBMITTED A CHART FOR ALL THE ASSESSMENT YEARS INVOLVED GIVING DETAILS OF STATEMENT FILED BY THE SBI: SL.NO. ASSESSMENT YEAR DATE OF FILING OF ONLINE STATEMENT TIME LIMIT FOR PASSING ORDER U/S.201(1) I.E. (FOR 2 YEARS FROM THE END OF FINANCIAL YEAR IN WHICH STATEMENT IS FILED) DATE OF ORDER U/S.201(1) 1 2010-11 04.09.2010 (ON PB - 10) 31.03.2013 23.02.2015 2 2011-12 23.10.2010(Q3) PB - 09 02.11.2010(Q2) PB-09 21.01.2011(Q3) PB-10 15.06.2011(Q4) PB-10 31.03.2014 23.02.2015 3 2012-13 15.05.2012(Q4)PB - 13 31.03.2014 23.02.2015 STATE BANK OF INDIA IN ITA NOS: 881 TO 883 FOR A.YS 2010-11 TO 2012-13 PAGE 4 OF 6 9. IN THE LIGHT OF THE ABOVE, IT WAS SUBMITTED THAT THE TIME FOR PASSING ORDER U/S.201(1) OF THE ACT HAS ALREADY EXPIRED IN THE AFORESAID CASES. THEREFORE, THE ORDER IS BARRED BY LIMITATION AND IS BAD IN LAW IN SUPPORT OF THIS CONTENTION, THE LD.COUNSEL FOR THE ASSESSEE ALSO PLACED RELIANCE IN THE CASE OF TROIKAA PHARMACEUTICALS LTD. VS. UNION OF INDIA (2016) 68 TAXMANN.COM 229 (GUJARAT) WHEREIN AT PARA 7, IT IS HELD THAT FOR ASSESSMENT YEAR 2009-10, LIMITATION FOR PASSING ORDERS AS PER THE PROVISION OF SECTION 201(3)(I) OF THE ACT, AS PREVAILING AT THE RELEVANT TIME HAD ALREADY EXPIRED ON 31.03.2012. THE LD.COUNSEL, FURTHER SUBMITTED THAT ITAT, AHMEDABAD IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2008-09 IN ITA NO.2154/AHD/2015 HAS ALLOWED THE APPEAL ON THE SAME ISSUE. THE AUTHORISED REPRESENTATIVE, FURTHER RELIED IN THE CASE OF M/S.TATA TELE SERVICES VS. UNION OF INDIA (2016) 66 TAXMANN.COM 157 (GUJARAT). 10. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE LOWER AUTHORITIES. 11. WE HAVE CONSIDERED THE FACTS AND PERUSED THE MATERIAL ON RECORD. THE PROVISIONS OF SECTION 201(3) OF THE ACT AS INSERTED BY FINANCE ACT 2009 ARE AS UNDER: 25 [(3) NO ORDER SHALL BE MADE UNDER SUB-SECTION (1) DEEMING A PERSON TO BE AN ASSESSEE IN DEFAULT FOR FAILURE TO DEDUCT THE WHOLE OR ANY PART OF THE TAX FROM A PERSON RESIDENT IN INDIA, AT ANY TIME AFTER THE EXPIRY OF- (I) TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED IN A CASE WHERE THE STATEMENT REFERRED TO IN SECTION 200 HAS BEEN FILED; STATE BANK OF INDIA IN ITA NOS: 881 TO 883 FOR A.YS 2010-11 TO 2012-13 PAGE 5 OF 6 (II) (III) 26 [SIX] YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH PAYMENT IS MADE OR CREDIT IS GIVEN, IN ANY OTHER CASE : PROVIDED THAT SUCH ORDER FOR A FINANCIAL YEAR COMMENCING ON OR BEFORE THE 1 ST DAY OF APRIL, 2007 MAY BE PASSED AT ANY TIME ON OR BEFORE THE 31 ST DAY OF MARCH, 2011. 12. THE PERUSAL OF THE ABOVE PROVISION SHOWS THAT LIMITATION IN INITIATING PROCEEDINGS U/S.201(1) OF THE ACT WOULD THEREFORE, BE GOVERNED BY SECTION 201(3)(I) OF THE ACT AS IT STOOD AT THE RELEVANT TIME WHEREIN IT PROVIDED FOR A PERIOD OF LIMITATION OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT WAS FILED AS REFERRED UNDER SECTION 200. THEIR LIMITATION FOR INITIATING ACTION U/S.201(1) OF THE ACT FOR THE STATEMENT FILED ON 04.09.2010 HAS ELAPSED ON 31.03.2013 WHEREAS THE TIME LIMITATION FOR INITIATING ACTION U/S.201(1) OF THE ACT FOR THE STATEMENT FILED DURING PERIOD FROM 23.10.2010 TO 15.05.2012 WAS ELAPSED ON 31.03.2014. WE MAY ALSO OBSERVE THAT THE AMENDMENT IN SECTION 201 OF THE ACT AS AMENDED BY FINANCE ACT NO.2 (2014) CAME INTO FORCE W.E.F. 20.05.2012. THEREFORE, THE IMPUGNED NOTICE AND ORDER U/S.201(1) IN RESPECT OF THE APPEALS UNDER CONSIDERATION HAVE BEEN CLEARLY BARRED BY LIMITATION, THEREFORE, SAME CANNOT BE SUSTAINED IN THE LIGHT OF THE DECISION IN CASE OF M/S.TATA TELE SERVICES VS. UNION OF INDIA (2016) 66 TAXMANN.COM 157 (GUJARAT) AND M/S.TROIKAA PHARMACEUTICALS LTD. VS. UNION OF INDIA (2016) 68 TAXMANN.COM 229 (GUJARAT). IT MAY ALSO BE NOTED THAT AMENDMENT MADE TO SECTION 201(3) BY FINANCE ACT 2014 IS PROSPECTIVE IN NATURE AND IS APPLICABLE FROM 01.10.2014 WHEREIN, THE TIME TO PASS ORDER U/S.201(1) WAS INCREASED TO SEVEN YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE PAYMENT IS MADE OR CREDIT IS GIVEN. THEREFORE, THE SAID AMENDMENT IS STATE BANK OF INDIA IN ITA NOS: 881 TO 883 FOR A.YS 2010-11 TO 2012-13 PAGE 6 OF 6 NOT APPLICABLE FOR THOSE ASSESSMENT YEARS FOR WHICH TIME LIMIT TO PASS THE ORDER U/S.201(1) IS EXPIRED 01.10.2014. SINCE IN THE CASE OF ASSESSEE, THE TIME LIMIT FOR PASSING THE ORDER U/S.201(1) OF THE ACT HAS EXPIRED ON 31.03.2013 AND 31.02.2014 RESPECTIVELY I.E. 01.10.2014. THEREFORE, THE IMPUGNED ORDER UNDER APPEAL IS CLEARLY BARRED BY LIMITATION. ACCORDINGLY, THE ORDER PASSED U/S.201(1A) OF THE ACT FOR THE IMPUGNED ASSESSMENT YEARS UNDER CONSIDERATION ARE THEREFORE QUASHED ON THIS LEGAL GROUND. SINCE THE ASSESSEE SUCCEEDS ON LEGAL GROUND, THEREFORE, OTHER GROUND OF APPEAL BECOME ACADEMIC IN NATURE AND INFRUCTUOUS, HENCE, NOT REQUIRE OUR ADJUDICATION. 13. IN THE RESULT, APPEAL OF THE ASSESSEE ARE ALLOWED FOR THE AFORESAID ASSESSMENT YEARS. ORDER PRONOUNCED IN THE OPEN COURT ON 20-03-2018. SD/- SD/- (C.M. GARG) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT: DATED: 20 TH MARCH, 2018 S.GANGADHARA RAO COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT