DCIT (INTERNATIONAL TAXATION) 2(2), CHENNAI V. TENTH PLANET TECHNOLOGIES PVT. LTD., CHENNAI

MA 124/CHNY/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7237 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 15-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G JOHNSON
• Keywords: Period of limitation; Time period of passing order; TDS
• Section: 201(1); 201; 48; 13; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C BENCH, CHENNAI , , BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO.124/CHNY/2020 IN I.T.A.NO.2497/CHNY/2018 [ [ / ASSESSMENT YEAR : 2010-11 THE DCIT, INTERNATIONAL TAXATION 2(2), CHENNAI. VS. M/S. TENTH PLANET TECHNOLOGIES P. LTD., NO.807, ANNA SALAI, 6 TH FLOOR, (OPP. TO LIC BUILDING), CHENNAI 600 002. PAN: AABCT 8911F ( [ /PETITIONER) ( /RESPONDENT) / APPLICANT BY : SHRI G. JOHNSON, ADDL.CIT /RESPONDENT BY : SHRI I. DINESH, ADVOCATE /DATE OF HEARING : 07.07.2021 /DATE OF PRONOUNCEMENT : 26.08.2021 /O R D E R PER MAHAVIR SINGH, VICE PRESIDENT : THIS MISCELLANEOUS APPLICATION FILED BY THE REVENUE U/S.254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AGAINST THE ORDER OF ITAT IN ITA NO.2947/CHNY/2018, FOR ASSESSMENT YEAR 2010-11, DATED 28.02.2020. 2. THE GRIEVANCE OF THE REVENUE POINTED OUT THAT THE INCOME TAX ACT DOES NOT PROVIDE TIME LIMIT FOR PASSING OF ORDER U/S.201, 201(1) & 201(1A) OF THE ACT, ON PAYMENTS MADE TO NON-RESIDENT U/S.195 OF THE ACT. 2 M.A. NO. 124/CHNY/2020 IT WAS CONTENDED BY THE LEARNED SENIOR DR, SHRI G. JOHNSON, THAT ONCE THERE IS NO TIME LIMIT FOR PASSING OF ORDER, THE AO NO DOUBT HAS PASSED THE ORDER ALMOST AFTER SIX YEARS. HE STATED THAT THE RELEVANT ASSESSMENT YEAR IS 2010-11 AND ORDER U/S.201(1) & 201(1A) OF THE ACT WAS PASSED ON 31.03.2017. HE STATED THAT IN APPLYING THE LAW OF LIMITATION, WHICH IS NOT PRESCRIBED UNDER THE ACT, THE TRIBUNAL HAS COMMITTED MISTAKE APPARENT FROM RECORD, WHILE PASSING APPELLATE ORDER. HENCE, IT WAS CONTENDED THAT THE ORDER MAY BE RECALLED AND BE DECIDED ON MERITS. 3. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT NO DOUBT THERE IS NO LIMITATION PRESCRIBED UNDER THE ACT FOR PASSING OF ORDER U/S.201(1) & 201(1A) OF THE ACT, BUT THERE ARE NUMEROUS JUDGMENTS OF VARIOUS HIGH COURTS AND HONBLE SUPREME COURT AND HE REFERRED TO THE DECISIONS OF HONBLE SUPREME COURT IN THE CASE STATE OF PUNJAB & ORS. VS. BHATINDA DISTRICT COOP. MILK P. UNION LTD., SLP (C) NO.5040 OF 2007, DATED 11.10.2007 AND HONBLE BOMBAY HIGH COURT IN THE CASE OF DIT (INTERNATIONAL TAXATION) VS. MAHINDRA & MAHINDRA LTD., [2014] 48 TAXMANN.COM150 (BOMBAY), DATED 03.07.2014. HE STATED THAT HONBLE BOMBAY HIGH COURT IN THE CASE OF MAHINDRA & MAHINDRA LTD., HAS DEALT WITH THIS ISSUE, WHEREIN UNDER CHALLENGE WAS THE ORDER PASSED U/S.201(1) & 201(1A) OF THE ACT, WHEREIN HONBLE BOMBAY HIGH COURT HAS CONSIDERED REASONABLENESS OF TIME LIMIT AND DELIBERATED IN PARA NO.35 & 36 AS UNDER:- 3 M.A. NO. 124/CHNY/2020 35 ONCE SAME PROVISIONS ARE INVOKED IN THE PRESENT CASE, THEN, THE HONOURABLE DELHI HIGH COURT, WITH RESPECT, RIGHTLY CONCLUDED THAT THOUGH SECTION 201 DOES NOT PRESCRIBE ANY LIMITATION PERIOD FOR THE ASSESSEE BEING DECLARED AS AN ASSESSEE IN DEFAULT YET THE REVENUE WILL HAVE TO EXERCISE THE POWERS IN THAT REGARD WITHIN A REASONABLE TIME. IN SUCH CIRCUMSTANCES WE ARE OF THE VIEW THAT THE TRIBUNAL'S ORDER IN THIS CASE DOES NOT SUFFER FROM ANY ERROR OF LAW APPARENT ON THE FACE OF RECORD OR PERVERSITY WARRANTING OUR INTERFERENCE IN APPELLATE JURISDICTION. 36 WE ARE ALSO SHOWN THE JUDGMENT OF THE CALCUTTA HIGH COURT IN THE CASE OF BHURA EXPORTS LTD. V. ITO (TDS), [2012] 202 TAXMAN 88/[2011] 13 TAXMANN.COM 162. WITH RESPECT AND FOR THE REASONS INDICATED BY US ABOVE WE CANNOT AGREE WITH THE VIEW TAKEN BY THE DIVISION BENCH OF THE CALCUTTA HIGH COURT. THAT DECISION OVERLOOKS THE FUNDAMENTAL PRINCIPLES NOTED ABOVE. THEY NEED NOT BE REITERATED HERE. 3.1 THE LD.COUNSEL FOR THE ASSESSEE FURTHER RELIED ON THE DECISION OF HONBLE HIMACHAL PRADESH HIGH COURT IN THE CASE OF CIT VS. SATLUJ JAL VIDYUT NIGAM LTD., [2012] 27 TAXMANN.COM 186 (HIMACHAL PRADESH) DATED 09.12.2009, WHEREIN IDENTICAL ISSUE WAS DECIDED AND THE RELEVANT FINDING IN PARA NO.9 READS AS UNDER:- 9. WE ARE IN RESPECTFUL AGREEMENT WITH THE JUDGEMENT OF THE DELHI HIGH COURT SINCE IT FOLLOWS THE LAW LAID DOWN BY THE APEX COURT. THE LAW IS WELL SETTLED THAT EVEN IF NO PERIOD OF LIMITATION IS PRESCRIBED, THE STATUTORY POWER MUST BE EXERCISED WITHIN A REASONABLE PERIOD. THIS REASONABLE PERIOD TAKING INTO CONSIDERATION THE VARIOUS PROVISIONS OF THE INCOME-TAX ACT HAS BEEN HELD TO BE FOUR YEARS IN A NUMBER OF CASES. WE SEE NO REASON TO EXTEND THIS PERIOD ANY FURTHER. CONSEQUENTLY, THE QUESTION IS ANSWER IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 4. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE CASE LAWS. IT IS NOTICED THAT THE ADMITTED FACT IS THAT THE ASSESSMENT YEAR INVOLVED IS 2010- 11 AND ORDER U/S.201(1) & 201(1A) OF THE ACT WAS PASSED ON 31.03.2017. 4 M.A. NO. 124/CHNY/2020 THE TRIBUNAL HAS APPLIED THE TEST PROPOUNDED BY VARIOUS DECISIONS OF HONBLE HIGH COURTS AND HONBLE SUPREME COURT CITED SUPRA. WE NOTED THAT THE AO HAS PASSED ORDER U/S.201(1) & 201(1A) OF THE ACT, ALMOST AFTER SIX YEARS. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND JUDGMENTS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE OF HONBLE HIGH COURT OF HIMACHAL PRADESH IN THE CASE OF CIT VS. SATLUJ JAL VIDYUT NIGAM LTD., SUPRA, HONBLE SUPREME COURT IN THE CASE OF STATE OF PUNJAB & ORS. VS. BHATINDA DISTRICT COOP MILK P. UNION LTD., SUPRA AND HONBLE HIGH COURT OF BOMBAY IN THE CASE OF DIT (INTERNATIONAL TAXATION) VS. MAHINDRA & MAHINDRA LTD., SUPRA , WE FEEL THAT ORDER WAS NOT PASSED WITHIN A REASONABLE TIME BY THE AO AND HENCE, THE TRIBUNAL HAS TAKEN A VIEW WHICH DOES NOT FALL UNDER THE RECTIFICATION PROCEEDINGS U/S.254(2) OF THE ACT. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH AUGUST, 2021 AT CHENNAI. SD/- SD/- /CHENNAI, /DATED 26 TH AUGUST, 2021 RSR /COPY TO: 1. / APPLICANT 2. /RESPONDENT 3. ( ) /CIT(A) 4. /CIT 5. /DR 6. [ /GF ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER ( ) (MAHAVIR SINGH) / VICE PRESIDENT