Bank of India , Shukrawar Peth, Pune V. Deputy Commissioner of Income-tax, (TDS), Pune

ITA 888/PUN/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2274 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CITA UPHOLDING
• Keywords: TDS
• Section: 201(1); 201; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH , A PUNE VIRTUAL COURT BEFORE SH RI R.S. SYAL, VICE PRESIDENT AND SH RI S.S. VISWANETHRA RAVI , J UDICIAL MEMBER . / ITA NO. 888 / PUN /201 9 / ASSESSMENT YEAR : 20 09 - 10 BANK OF INDI A SHUKRAWAR PETH BRANCH 1412, SHEWDE LANE, SHUKRAWAR PETH, PUNE 411002 PAN: AA ACB0472C VS. DCIT (TDS), PUNE APPELLANT RESPONDENT . / ITA NO. 889/PUN/2019 / ASSESSMENT YEAR : 20 09 - 10 BANK OF INDIA KOREGAON PARK BRANCH L ADKAT PLAZA, KOREGAON PARK, PUNE 41100 1 PAN: AAACB0472C VS. DCIT(TDS), PUNE APPELLANT RESPONDENT . / ITA NO. 890/PUN/2019 / ASSESSMENT YEAR : 20 09 - 10 BANK OF INDIA CAMP BRANCH 8A DR. COYAJI ROAD, CAMP PUNE 411001 P AN: AAACB0472C VS. DCIT(TDS), PUNE APPELLANT RESPONDENT . / ITA NO. 891/PUN/2019 / ASSESSMENT YEAR : 20 09 - 10 BANK OF INDIA KOTHRUD BRANCH 133/1, BEHDE COMPLEX, KOTHRUD, PUNE 411038 PAN: AAACB0472C VS. ITO - TDS(1), PUNE APPELLANT RESPONDENT ITA NO S . 888 TO 89 2 /PUN/201 9 BANK OF INDIA 2 . / ITA NO. 892/PUN/2019 / ASSESSMENT YEAR : 2009 - 10 BANK OF INDIA KIRKEE BRANCH GANGA HEIGHTS, KHADKI BAZAR, KHADKI, PUNE 411003 PAN: AAACB0472C VS. ITO - TDS(1), PUNE APPELLANT RESPONDENT / ORDER TH ESE FIVE APPEAL S BY THE ASSESSEE RELATING TO THE CAPTIONED BRANCHES OF BANK OF INDIA PERTAIN TO THE F.Y. 2009 - 10. ALL THE APPEALS ARE DIRECTED AGAINST THE ORDER S PASSED BY THE CIT(A) UPHOLDING THE ORDERS PASSED BY ASSESSING OFFICER (AO) U/S. 201(1) AND 201(1A) OF THE INCOME - TAX ACT, 1961 ( H EREINAFTER REFERRED TO AS THE ACT) . SINCE COMMON ISSUE IS RAISED IN THESE APPEALS, WE, THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THESE APPEALS ARE TIME BARRED BY FEW DAYS FOR WHICH NECESSARY CONDONATION APPLICATIONS HAVE BEEN FILED. WE ARE SATISFIED WITH THE REASONS F OR THE DELAY. SUCH A DELAY IS CONDONED AND THE APPEALS ARE ADMITTED FOR DISPOSAL. ASSESS EE BY SHRI VASUDEVAN IYER REVENUE BY SHRI S.P. WALIMBE DATE OF HEARING 2 9 - 0 6 - 2021 DATE OF PRONOUNCEMENT 30 - 0 6 - 2021 ITA NO S . 888 TO 89 2 /PUN/201 9 BANK OF INDIA 3 3. THE FACTUAL MATRIX OF THE CASE IS THAT THE ABOVE REFERRED BRANCHES OF THE ASSESSEE - BANK ACCEPTED DEPOSITS FROM ITS CUSTOMERS, ON WHICH TAX WAS DEDUCTIBLE AT SOURCE U/S 194 A OF THE ACT. THE ASSESSEES FURNISHED TDS STATEMENTS IN RESPECT OF THE FOUR QUARTERS ENDING ON 30.6.2008, 30.9.2008, 31.12.2008 AND 31.3.2009 ON VARIOUS DATES WITH THE LAST SUCH DATE , BEING , 16.5.2009. THE AO FOUND CERTAIN ANOMALIES THEREIN AND OBSERVED TH AT IN SOME CASES THERE WAS NO DEDUCTION OF TAX AT SOURCE , WHILST IN OTHERS THERE WAS SHORT DEDUCTION OF TAX ON INTEREST PAYMENTS. HE PASSED THE ORDERS DATED 30/31.3.2016 U/S 201(1) READ WITH SECTION 201(1A) OF THE ACT TREATING THE ASSESSES AS IN DEFAULT. THE ASSESSEE CHALLENGED SUCH ORDER S BEFORE THE LD. CIT(A). IT ALSO RAISED AN ADDITIONAL GROUND BEFORE THE LD. FIRST APPELLATE AUTHORITY TO THE EFFECT THAT THE ORDER S PASSED BY THE AO W ERE TIME BARRED. THE LD. CIT(A) ADMITTED THE ADDITIONAL GROUND BUT DI SMISSED THE SAME ON MERITS BY HOLDING THAT THE ORDER S PASSED IN THE YEAR 2016 WERE GOVERNED BY THE THEN EXISTING TIME LIMIT U/S 201(3) OF THE ACT AS AMENDED BY THE FINANCE (NO.2) ACT, 2014. AGGRIEVED THEREBY, THE ASSESSEE S HA VE COME UP IN APPEAL BEFORE TH E TRIBUNAL. 4. WE HAVE HEARD BOTH THE SIDES THROUGH VIRTUAL COURT AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD . THE ADMITTED POSITION IS ITA NO S . 888 TO 89 2 /PUN/201 9 BANK OF INDIA 4 THAT THE TDS STATEMENTS WERE FILED BY THE ASSESSEE S WITHIN TIME AND THE RETURN S FOR THE LAST QUARTER OF THE YEAR W ERE FILED LATEST ON 16.05.2009. THE CASE OF THE ASSESSEE IS THAT THE ORDER S PASSED BY THE AO ARE BARRED BY TIME IN TERMS OF THE MAN DATE OF SECTION 201(3) SINCE THESE WERE PASSED AFTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR. PER CONTRA , THE REVENUE HAS CANVASSED A VIEW THAT THE TIME LIMIT WAS SEVEN YEARS FROM THE END OF THE FINANCIAL YEAR AS PER THE PROVISION EXISTING ON THE DATE OF PASSING OF THE ORDER BY THE AO. 5 . IT IS SEEN THAT SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE THE TR IBUNAL IN ANOTHER BRANCH OF THE ASSESSEE BANK FOR THE A.Y. 2010 - 11 ( ITA NO.893/PUN/2019 ) . VIDE ITS SEPARATE ORDER PASSED TODAY, THE TRIBUNAL HAS HELD THAT THE TIME LIMIT WAS TO BE CONSIDERED WITH REFERENCE TO THE PROVISIONS AS EXISTING IN RELATION TO THE R ELEVANT FINANCIAL YEAR. SINCE TH E ASSESSMENT YEAR INVOLVED WAS 2010 - 11 AND SUB - SECTION (3) OF SECTION 201 WAS INSERTED BY THE FINANCE (NO.2) ACT, 2009 W.E.F. 1.4.2010, IT WAS HELD THAT THE ORDER PASSED BY THE AO WAS TIME BARRED WITHIN THE STIPULATION OF S UCH INSERTION . 6 . HOWEVER, THE ASSESSMENT YEAR UNDER CONSIDERATION IN ALL THE APPEALS IS 2009 - 10. AT THE VERY OUTSET, THE LD. AR SUBMITTED THAT ITA NO S . 888 TO 89 2 /PUN/201 9 BANK OF INDIA 5 SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE THE PUNE TRIBUNAL IN CERTAIN OTHER BRANCHES OF ASSESSEE - BAN K FOR THE A.Y. 2009 - 10. REFERRING TO ITS ORDER PASSED ON 25.07.2019 ( IN ITA NO.119/PUN/2019 ETC.), THE TRIBUNAL HAS HELD THAT THE ORDER S PASSED BY THE AO U/S 201(1) WERE BARRED BY TIME. SINCE THE FACTS AND CIRCUMSTANCES OF THE INSTANT APPEALS FOR THE SA ME YEAR ARE MUTATIS MUTANDIS SIMILAR, THE LD. AR PRAYED THAT SIMILAR VIEW SHOULD BE TAKEN . THE LD. DR CANDIDLY ACCEPTED THE POSITION. IN THE ABSENCE OF ANY CONTRARY ARGUMENT PUT FORTH ON BEHALF OF THE REVENUE AND R ESPECTFULLY FOLLOWING THE AFORESAID ORDE R PASSED BY THE TRIBUNAL, WE HOLD THAT THE ORDERS PASSED BY THE AOS IN THESE FIVE APPEALS ARE BARRED BY LIMITATION. IN VIEW OF OUR DECISION ON THE LEGAL GROUND SETTING ASIDE THE ORDERS OF THE AO PASSED U/S 201(1), THERE IS NO POINT IN CONSIDERING THE ISSUE ON MERITS AS WELL. 7 . IN THE RESULT, THE APPEAL S ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JUNE , 2021 . SD/ - SD/ - ( S.S. VISWANETHRA RAVI ) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT PUNE ; DATED : 30 TH JUNE , 2021 GCVSR ITA NO S . 888 TO 89 2 /PUN/201 9 BANK OF INDIA 6 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT (A) , PUNE - 10 4. 5. 6. THE CIT (TDS), PUNE DR, ITAT, A BENCH, PUNE / GUARD FILE . / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 2 9 - 0 6 - 2021 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 30 - 0 6 - 2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. K EPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *