DCIT (TDS) -1 (2), MUMBAI V. HATHWAY NASIK CABLE NETWORK P. LTD, MUMBAI

MA 359/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5777 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: misc
• Appeal Filed On: 19-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VODAL RAJ SINGH
• Assessee Lawyers: NITESH JOSHI MANOJ DIXIT
• Keywords: Period of limitation; Time period of passing order; TDS
• Section: 201; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 359 / MUM /2019 ( ARISING OUT OF ITA N O. 4048 /MUM /201 6 ) ( ASSESSMENT YEAR : 2001 02 ) M.A. NO. 360/ MUM /2019 ( ARISING OUT OF ITA N O. 4049/MUM /201 6 ) ( ASSESSMENT YEAR : 2004 05 ) THE DCIT (TDS) - 1(2), ROOM NO. 814, 8 TH FLOOR, K.G. MITTAL HOSPITAL BLDG., CHARNI RD (W), MUMBAI - 400002 VS. M/S HATHWAY NASIK CABLE & NETWORK PVT. LTD., RAHEJA, 4 TH FLOOR, CORNERS OF MAIN AVENUE & V.P. ROAD, SANTA CRUZ (WEST), MUMBAI 400054 PAN: AAACH9070Q (APPELLANT) (RESPONDENT) REVENUE BY : SHRI VODAL RAJ SINGH ( SR. DR ) ASSESSEE BY : SHRI NITESH JOSHI / MANOJ DIXIT (AR) DATE OF HEARING : 11/10 /201 9 DATE OF PRONOUNCEMENT: 08 / 01 /20 20 O R D E R PER RAM LAL NEGI, JM THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION S FOR RECALLIN G /RECTIFICATION OF COMMON ORDER DATED 03.12.2018 PASSED BY THE C BENCH OF THE ITAT MUMBAI IN A SSESS EES APPEAL ITA NO . 4048 & 4049/MUM/2016 PERTAI NING TO THE ASSESSMENT YEAR S 2001 - 2002 AND 2004 - 05 RESPECTIVELY , ON THE GROUND THAT THE TRIBUNAL HAS WRONGLY QUASHED THE ORDER U/S 201 (1)/201(1A) PASSED BY THE AO BY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES APPEAL PERTAINING TO THE ASSESSMENT YEAR 2003 - 04. 2. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITTED BEFORE US THAT THE TRIBUNAL HAS DECIDED THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2003 - 04 BY FOLLOWING THE JUDGMENT OF THE HONBLE BOMBA Y HIGH COURT IN THE CASE OF 2 M.A. NO S . 359 AND 360 / MUM/2019 ASSESSMENT YEAR S : 2001 - 02 & 2004 - 05 DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) VS. MAHINDRA AND MAHINDRA LTD. 365 ITR 560, IN WHICH THE HONBLE HIGH COURT HAS HELD THAT EVEN THOUGH SECTION 201 DOES NOT PRESCRIBED ANY LIMITATION PERIOD FOR DECLARING AN ASSESS EE IN DEFAULT, YET THE REVENUE WILL HAVE TO EXERCISE POWERS IN THAT REGARD WITHIN A REASONABLE TIME BEING FOUR YEARS. THE LD. DR FURTHER SUBMITTED THAT THE PRESENT CASES SINCE THE AO HAD PASSED THE ASSESSMENT ORDERS IN ACCORDANCE WITH THE PROVISO TO SUB SE CTION 3 TO SECTION 201, THE T RIBUNAL HAS WRONGLY HELD THAT THE ASSESSMENT ORDERS HAVE BEEN PASSED BEYOND LIMITATION . AS PER PROVISO TO SUB SECTION 3 TO SECTION 201 AS IT STOOD BEFORE THE AMENDMENT THE AO WAS COMPETENT TO PASS SUCH ORDER FOR FINANCIAL YEAR COMMENCING ON OR BEFORE THE 1 ST DAY OF APRIL, 2007 AT ANY TIME ON OR BEFORE THE 31 ST DAY OF MARCH, 2011. S INCE THESE CASES PERTAIN TO THE AYS 2001 - 02 AND 2004 - 05, AND THE AO HAD PASSED THE ASSESSMENT ORDERS ON 28.03.2011, THE SAME WAS WITHIN LIMITATION PER IOD. THEREFORE, THE LD CIT(A) HAD RIGHTLY CONFIRMED THE ASSESSMENT ORDERS. HENCE, THE TRIBUNAL HAS WRONGLY QUASHED THE ORDERS PASSED BY THE LD. CIT (A) BY RELYING ON THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE AY 2003 - 04 DISCUSSED ABOVE . 3 . ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE TRIBUNAL HAS PASSED THE ORDER DATED 03.12.2018 BY FOLLOWING THE DECISION OF THE COORDINATE BENCH RENDERED IN THE ASSESSEES OWN CASE FOR THE AY 2003 - 04 IN WHICH THE TRIBUNAL HAS DEA LT WITH THE ISSUE RAISED BY THE REVENUE IN THE PRESENT MISCELLANEOUS APPLICATION S . THE LD. COUNSEL FURTHER POINTED OUT THAT THE ISSUE RAISED BY THE REVENUE DOES NOT FALL WITHIN THE PURVIEW OF MISTAKE APPARENT FROM THE RECORD TO RECTIFY THE SAME. 4. WE HAV E HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND CAREFULLY PERUSED THE MATERIAL ON RECORD. AS POINTED OUT BY THE LD. COUNSEL, THE COORDINATE BENCH HAS DEALT WITH THE ISSUE RAISED IN THE PRESENT MA S AND AFTER TAKING INTO CONSIDERATION THE PROVISO TO SUB SE CTION 3 TO SECTION 201, DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE C BENCH OF THE TRIBUNAL HAS PASSED THE ORDER DATED 03.12.2018 BY FOLLOWING THE DECISION OF THE COORDINATE BENCH RENDERED IN THE ASSESSEES OWN CASE ITA NO. 4112/MUM/2016 FOR THE AY 2003 - 04. 3 M.A. NO S . 359 AND 360 / MUM/2019 ASSESSMENT YEAR S : 2001 - 02 & 2004 - 05 SINCE, THE DEPARTMENT DID NOT CONTEND THAT THE OPERATION OF ORDER PASSED BY THE TRIBUNAL IN THE ASSESSEES CASE PERTAINING TO THE AY 2003 - 04 HAS BEEN STAYED BY THE APPELLATE COURT , THE TRIBUNAL HAS PASSED THE ORDER DATED 03.12.2018 BY FOLLOWING TH E DECISION OF THE COORDINATE BENCH IN ASSESSES OWN CASE. HENCE, IN OUR CONSIDERED OPINION, THE ISSUE RAISED BY THE REVENUE DOES NOT FALL WITHIN THE AMBIT OF SECTION 254 (2) OF THE ACT TO RECTIFY/RECALL THE SAME. UNDER SECTION 254 (2) THE TRIBUNAL HAS A LI MITED JURISDICTION TO RECTIFY ANY MISTAKE APPARENT FROM RECORD. HENCE, WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE REVENUE. WE ACCORDINGLY DISMISS BOTH THE MISCELLANEOUS APPLICATIONS FILED IN RESPECT OF THE COMMON ORDER DATED 03.12.2018 PASSED BY THE TRIBUNAL PERTAINING TO THE AY 2001 - 02 AND 2004 - 05. IN THE RESULT, MISC. APPLICATION S FILED BY THE REVENUE FOR A SSESSMENT YEAR S 2001 - 02 AND 2004 - 05 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JANUARY , 2020 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 08 / 01 / 20 20 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI