Vodafone Cellular Ltd., Pune V. Deputy Commissioner of Income-tax, TDS - 1, Pune

MA 36/PUN/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5947 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Period of limitation; Time period of passing order
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI , AM AND SHRI VIKAS AWASTHY , JM M A NO S . 35 & 36 /PUN/201 7 ( ARISING OUT OF ITA NO S . 818 & 1961/PUN/2013 ) / ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 VODAFONE CELLULAR LIMITED, (FORMERLY KNOWN AS VODAFONE ESSAR CELLULAR LTD.) E.P NO. 27, S. NO.21, THE METROPOLITAN, OLD MUMBAI PUNE HIGHWAY, SHIVAJINAGAR, PUNE - 411 019 PAN :AAACB8614L ....... / APPLICANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, TDS - 1, PUNE. / RESPONDENT ASSESSEE BY : SHRI SALIL KAPOOR, SHRI ABHINAV GUPTA & SHRI RAJAT SONI REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 13.10 .2017 / DATE OF PRONOUNCEMENT : 03 .1 1 .2017 / ORDER PER VIKAS AWASTHY, JM THESE TWO MISCELLANEOUS APPLICATION S I.E. MISCELLANEOUS APPLICATION NO. 35/PUN/2017 FOR ASSESSMENT YEAR 2008 - 09 AND MISCELLANEOUS APPLICATION N0. 36/PUN/2017 FOR ASSESSMENT YEAR 2009 - 10 HAVE BEEN FILED BY THE ASSESSEE U/S . 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) SEEKING RECTIFICATION IN THE ORDER 2 MA NOS. 35 & 36 /PUN/2017 A.YS. 2008 - 09 & 2009 - 10 OF TRIBUNAL DATED 04.01.2017 WHEREBY BUNCH OF APPEALS I.E. ITA NOS. 817, 818, 1577, 1578, 1961 & 1962/PUN/2013 FOR ASSESSMENT YEARS 2007 - 08 TO 2012 - 13 WERE DECIDED BY A SINGLE ORDER OF THE TRIBUNAL. 2. SHRI SALIL KAPOOR WITH SHRI ABHINAV GUPTA & SHRI RAJAT SONI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT WHILE MAKING SUBMISSIONS AT THE TIME OF HEARING OF APPEALS, THE GROUND WAS RAISED IN THE APPEAL S FOR ASSESSMENT YEARS 2007 - 08 & 2008 - 09 , CHALLENGING THE VALIDITY OF ORDERS PASSED U/S. 201(1) & 201(1A) ON THE GROUND OF LIMITATION. IDENTICAL GROUNDS WERE RAISED IN ASSESSMENT YEAR 2007 - 08 & 2008 - 09. THE TRIBUNAL WHILE CONSIDERING THIS GROUND TABULATED THE DATES IN PARA - 6 AT PAGE NO. 4 AND 5 OF THE ORDER. THE TRIBUNAL WHILE ADJUDICATING THE ISSUE IN P ARA 32 AND 32.1 AT PAGE NO. 18 & 19 OF THE ORDER HAS MENTIONED ONLY ONE ASSESSMENT YEAR I.E. ASSE SSMENT YEAR 2007 - 08 AND OMITTED TO MENTION ASSESSMENT YEAR 2008 - 09 . THOUGH ADDITIONAL GROUND CHALLENGING PERIOD OF LIMITATION FOR PASSING ORDER U/S. 201(1) & 201(1A) IN BOTH THE ASSESSMENT YEARS WERE IDENTICAL AND THE FACTS IN BOTH THE ASSESSMENT YEARS A RE ALSO IDENTICAL. THE FINDINGS OF THE TRIBUNAL ON THE ISSUE OF LIMITATION IN ASSESSMENT YEAR 2007 - 08 ARE EQUALLY GOOD AND APPLICABLE FOR ASSESSMENT YEAR 2008 - 09 AS WELL. 3. IN RESPECT OF MISCELLANEOUS APPLICATION NO. 36/PUN/2017 IN ITA NO. 1961/PUN/2013 FOR ASSESSMENT YEAR 2009 - 10, THE LD. AR SUBMITTED THAT ASSESSEE HAD RAISED ADDITIONAL GROUND CHALLENGING VALIDITY OF ORDER PASSED U/S. 201(1) OF THE ACT ON THE GROUND OF LIMITATION. THE TRIBUNAL WHILE DECIDING THE APPEALS HAS OMITTED TO ADJUDICATE THE GRO UND NO. 1 RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2009 - 10. 3 MA NOS. 35 & 36 /PUN/2017 A.YS. 2008 - 09 & 2009 - 10 4. DR. VIVEK AGGARWAL REPRESENTING THE DEPARTMENT ADMITTED THAT THE ISSUE OF LIMITATION RAISED BY THE ASSESSEE AS ADDITIONAL GROUND IN ASSESSMENT YEAR 2007 - 08 AND 2008 - 09 ARE IDENTICAL AND THE F ACTS GERMEN TO THE ABOVE SAID GROUNDS ARE ALSO SIMILAR I N RESPECT OF MISCELLANEOUS APPLICATION NO. 36/PUN /2017 FOR ASSESSMENT YEAR 2009 - 10 . THE LD. DR POINTED THAT IN PARA NO. 37 AT PAGE NO. 23 AND 24 OF THE ORDER, THE TRIBUNAL HAS RECORDED FINDINGS THAT THE LD. COUNSEL FOR THE ASSESSEE COULD NOT SUBSTANTIATE AS TO HOW THE ISSUE OF OTHER YEARS IS BAD IN LAW OR VOID - AB - INITIO AND BARRED BY LIMITATION. HOWEVER, T HERE IS NO SPECIFIC FINDING ON THE ISSUE OF LIMITATION RAISED IN GROUND NO. 1 IN THE APPEAL FOR ASSESSMENT YEAR 2009 - 10. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL 5. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES. MA NO. 35/PUN/2017 : - 6. IN MISCELLANEOUS APPLICATION NO. 35/PUN/2017 (ARISING OUT IN ITA NO.818/PUN/2017) FOR ASSESSMENT YEAR 2008 - 09, LIMITED PRAYER OF THE ASSESSEE IS TO INCORPORATE ASSESSMENT YEAR 2008 - 09 ALONG WITH ASSESSMENT YEAR 2007 - 08 IN PARA NO. 32 & 32.1 , AS THE ISSUE RELATING TO THE GROUND OF LIMITATION IN BOTH THE APPEALS ARE IDENTICAL AND IS ARISING FROM THE SIMILAR FACTS. IT HAS BE EN POINTED BY THE LD. AR FOR THE ASSESSEE THAT PERIOD OF LIMITATION FOR PASSING ORDER U/S. 201(1) EXPIRED ON 31.03.2010 , WHEREAS THE ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER FOR ASSESSMENT YEAR 200 8 - 09 ON 22.03.2011 . WE FIND THAT IN GROUND NO. 1 OF T HE APPEAL, THE ASSESSEE HAS IMPUGNED THE ORDER PASSED U/S. 201 (1) OF THE ACT BEING BARRED BY LIMITATION. SINCE THE FACTS ON RECORD CLEARLY 4 MA NOS. 35 & 36 /PUN/2017 A.YS. 2008 - 09 & 2009 - 10 INDICATE THAT THE ORDER U/S. 201(1) OF THE ACT PASSED BY THE ASSESSING OFFICER IS BEYOND THE PERIOD AS SPECIFIED UND ER THE PROVISION OF THE ACT , T HE SAME SUFFERS FROM LIMITATION. 7. THE LD. DR HAS FAIRLY ADMITTED THAT THE FINDINGS GIVEN BY THE TRIBUNAL ON THE GROUND OF LIMITATION FOR ASSESSMENT YEAR 2007 - 08 WOULD APPLY TO ASSESSMENT YEAR 2008 - 0 9 AS WELL. IN VIEW OF T HE FACTS OF THE CASE AND DOCUMENTS ON RECORD , IT APPEARS THAT ERROR HAS CREPT IN THE ORDER OF TRIBUNAL . ON PERUSAL OF THE ORDER OF TRIBUNAL DATED 04.01.2017 , WE FIND THAT THE APPEALS OF THE ASSESSEE FOR ASSESSMENT YE AR 2 007 - 08 & 2008 - 09 IN ITA NOS.817 & 818/PUN/2013 WERE TAKEN UP TOGETHER FOR ADJUDICATION. HOWEVER, AT THE TIME OF RECORDING F INDINGS IN PARA 32, FINDINGS HAVE BEEN GIVEN ONLY WITH RESPECT TO ASSESSMENT YEAR 2007 - 08 AND ASSESSMENT YEAR 2008 - 09 HAS BEEN OMITTED. THEREFORE, TO RECTIFY THE MIS TAKE IN PARA 32.1, IMMEDIATELY AFTER ASSESSMENT YEAR 2007 - 08, THE WORDS AND ASSESSMENT YEAR 2008 - 09 ARE INSERTED. FURTHER, W HIL E PERUSING PARA 32.1, WE OBSERVE THAT IN LINE 1 OF THE PARA 32.1, IT HAS BEEN MENTIONED CHRONOLOGY OF EVENTS REPRODUCED AT PA GE NO. 7 , THOUGH THEY ARE REPRODUCED IN PAGE 5 . THIS IS A TYPOGRAPHICAL ERROR WHICH IS SUO - MOTO REC TIFIED. AFTER RECTIFICATION PARA 32.1 READ AS UNDER : 32.1 FURTHER, AS PER THE CHRONOLOGY OF EVENTS REPRODUCED AT PAGE 5 OF THE ORDER OF THE CIT(A) WHICH HAS ALREADY BEEN REPRODUCED AT PARA 6 OF THIS ORDER, WE FIND THE ASSESSEE HAS FAILED ALL THE REQUISITE DETAILS ON 08.05.2008. WE FIND THE SPECIAL BENCH OF THE T RIBUNAL IN THE CASE OF MAHINDRA AND MAHINDRA LTD. (SUPRA) HAS HELD THAT THE MAXIMUM TIME LIMIT FOR PASSING THE ORDER U/S. 201(1) OR 201(1A) IS THE SAME AS PRESCRIBED U/S. 153(2),.I.E. ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH PROCEEDINGS U/S. 20 1(1) ARE INITIATED. THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL HAS BEEN UPHELD BY THE HONBLE HIGH COURT REPORTED IN 365 ITR 560. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER FOR A.Y. 2007 - 08 AND A.Y. 2008 - 09 HAS GOT BARRED BY LIMITATION. THEREFORE, DUE TO NON ISSUE OF STATUTORY NOTICE FOR PASSING THE ORDER U/S. 201(1) AND 201(1A) AND DUE TO BAR BY LIMITATION, THE ORDER PASSED BY THE ASSESSING OFFICER FOR A.Y.2007 - 08 AND A.Y. 2008 - 09 HAVE BECOME ILLEGAL AND VOID. WE HOLD ACCORDINGLY. 5 MA NOS. 35 & 36 /PUN/2017 A.YS. 2008 - 09 & 2009 - 10 WITH THE ABOVE RECTIFICATION, MISCELLANEOUS APPLICATIO N FILED BY THE ASSESSEE IS ALLOWED . MA NO. 36 /PUN/2017 : - 8. BOTH SIDES A RE IN CONSONANCE THAT GROUND NO. 1 RAISED IN THE APPEAL BY ASSESSEE, RELATING TO TIME BARRING OF ORDER PASSED U/S. 201(1) HA S NOT BEEN ADJUDICATED. GROUND NO. 1 RAISED IN THE APPEAL FOR ASSESSMENT YEAR 2009 - 10 IS REPRODUCED HEREIN BELOW : 1.GROUND NO.1 - THE ORDER IS BAD IN LAW AND VOID AB INITIO 1.1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE IMPUGNED ORDER PASSED BY THE LEARNED TDS OFFICER FOR FINANCIAL YEAR 2008 - 09, IS BAD IN LAW AND VOID - AB - INITIO SINCE THE ORDER HAS BEEN PASSED BEYOND THE LIMITATION PERIOD SPECIFIED UNDER SECTIO N 201(3) OF THE ACT, FOR PASSING AN ORDER TREATING A PERSON AS AN ASSESSEE IN DEFAULT FOR NON DEDUCTION OF TAX AT SOURCE UNDER THE ACT. AFTER EXAMINING THE ORDER OF THE TRIBUNAL DATED 04.01.2017, WE FIND THAT THE ISSUE RELATING TO TIME BARRING OF ORDER PASSED U/S. 201(1) OF FIND THAT THE ISSUE RELATING TO TIME BARRING OF ORDER PASSED U/S. 201(1) OF THE ACT FOR ASSESSMENT YEAR 2009 - 10 HAS NOT BEEN SPECIFICALLY DEC IDED BY THE TRIBUNAL THOUGH IN P ARA 37 , IT HAS BEEN OBSERVED THAT THE LD. COUNSEL FOR THE ASSESSEE COULD NOT SUBSTANTIATE AS TO HOW THE ORDERS FOR OTHER YEARS ARE BAD IN LAW OR VOID OR BARRED BY LIMITATION. THE LD. COUNSEL FOR THE ASSESSEE HAS POINTED THAT AT THE TIME OF HEARING OF THE APPEAL SPECIFIC SUBMISSIONS WERE MADE WITH RESPECT TO TIME BARRING LIMITATION WHILE PASSING ORDER U/S. 201(1) OF THE ACT IN ASSESSMENT YEA R 2009 - 10. AFTER EXAMINING THE RECORDS, WE ARE OF CONSIDERED VIEW THAT TRIBUNAL HAS MISSED TO ADJUDICATE GROUND NO. 1 RAISED IN THE APPEAL FOR ASSESSMENT YEAR 2009 - 10 . ACCORDINGLY , WE DEEM IT APPROPRIATE TO RECALL THE ORDER OF TRIBUNAL DATED 04.01.2017 FO R LIMITED PURPOSE OF ADJUDICATING GROUND NO. 1 RIASED BY THE ASSESSEE IN APPEAL FOR ASSESSMENT YEAR 2009 - 10 , AS REPRODUCED HEREINABOVE. THUS, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 10 IS ALLOWED IN THE AFORESAID TERMS. 6 MA NOS. 35 & 36 /PUN/2017 A.YS. 2008 - 09 & 2009 - 10 9 . THE REGISTRY IS DIRECTED TO FIX THE DATE OF HEARING OF APPEAL IN ITA NO.1961/PN/2013 FOR ASSESSMENT YEAR 2009 - 10 ON 28.12.2017 . SINCE BOTH SIDES PRESENT IN THE COURT, WERE INFORMED THE DATE OF HEARING, ISSUANCE OF SEPARATE NOTICE IS DISPENSED WITH. 10. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE ARE ALLOWED, AS AFORESAID. ORDER PRONOUNCED ON FRIDAY, THE 03 RD DAY OF NOVEMBER , 2017. SD/ - SD/ - ( / ANIL CHATURVEDI ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 03 RD NOVEMBER , 2017. SB / COPY OF THE ORDER FORWARDED TO : / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (A) - V, PUNE . 4. CIT (TDS), PUNE . 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE.