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

MA 89/PUN/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4197 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; TDS
• Section: 201(1); 254(2)

Judgement Text

आयकर अपीलीय अधिकरण “बी” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER धिधिि आिेदन सं. / MA No.89/PUN/2018 (Arising out of MA No. 35/PUN/2017) धनिाारण िर्ा / Assessment Year : 2008-09 Deputy Commissioner of Income Tax, TDS – 1, Pune .......अपीलार्थी / Appellant बनाम / V/s. Vodafone Cellular Limited, (Formerly known as Vodafone Essar Cellular Ltd.), F.P. No. 27, S. No. 21, The Metropolitan, Old Mumbai Pune Highway, Shivajinagar, Pune – 411019 PAN : AAACB8614L ......प्रत्यर्थी / Respondent Assessee by : Shri Salil Kapoor Revenue by : Shri Piyushkumar Singh Yadav सुनवाई की तारीख / Date of Hearing : 20-05-2022 घोषणा की तारीख / Date of Pronouncement : 26-05-2022 आदेश / ORDER PER S.S. VISWANETHRA RAVI, JM : This Miscellaneous Application by the Revenue intends to rectify the mistake apparent in order dated 03-11-2017 passed in MA No. 35/PUN/2017 in ITA No.818/PUN/2013 for A.Y. 2008-09. 2. The ld. DR, Shri Piyushkumar Singh Yadav submits that this Tribunal treated order u/s. 201(1)/201(1A) of the Act passed in A.Y. 2008- 2 MA No. 89/PUN/2018, A.Y. 2008-09 09 as time barred by holding that no statutory notice was issued and argued that the order of ITAT in MA No. 35/PUN/2017 is not acceptable as the same is erroneous. He submits that a survey action was carried on the assessee on 23-04-2008 (F.Y. 2008-09). On noticing discrepancies, the AO initiated proceedings u/s. 201(1) of the Act by issuing notice on 22-01- 2010 for the first time and order u/s. 201(1) passed on 22-03-2011 for A.Y. 2008-09. He argued the said order was passed within the prescribed time limit being one year from the end of the financial year in which proceedings u/s. 201(1) is initiated with a limitation to pass order on 31-03-2011 and the order passed u/s. 201(1) is valid as per the provisions of Income Tax Act. Further, he submits that this Tribunal allowed Miscellaneous Application in MA No. 35/PUN/2017 in ITA No. 818/PUN/2013 filed by the assessee by inserting A.Y. 2008-09 in Para No. 32.1 of order dated 04- 01-2017 and held the limitation for A.Y. 2007-08 is applicable to A.Y. 2008-09 as well. 3. The ld. AR, Shri Salil Kapoor vehemently opposed the present Miscellaneous Application by contending that the Revenue is not entitled to file Miscellaneous Application in Miscellaneous Application under law and prayed to take the same as preliminary issue. The ld. AR drew our attention to the decision of Hon’ble Supreme Court in the case of CIT Vs. M/s. Reliance Telecom Limited in Civil Appeal No. 7110 of 2021 order dated 03-12-2021 and argued that the remedy available to the Revenue in questioning the order of ITAT on merits is to prefer an appeal before the Hon’ble High Court and the present Miscellaneous Application filed by the Revenue is liable to be dismissed. Further, he drew our attention to Para No. 4.2 of the present Miscellaneous Application and submits that the contention of the Revenue, the ITAT is incorrectly held the order u/s. 3 MA No. 89/PUN/2018, A.Y. 2008-09 201(1)/201(1A) for A.Y. 2008-09 is illegal and void by incorrectly holding that no notice u/s. 201(1) and 201(1A) was issued in respect of the said assessment year. He argued that the said allegation of Revenue is factually incorrect as this Tribunal in Miscellaneous Application held the order for A.Y. 2008-09 is illegal, void and barred by limitation on account of fact that the order was passed beyond the period of one year from the end of the financial year in which proceedings u/s. 201(1) of the Act were initiated. He submits that the said allegation raised by the Revenue is not the basis for quashing the order u/s. 201(1)/201(1A) of the Act for A.Y. 2008-09 by the Tribunal, it held the order passed u/s. 201(1) and 201(1A) of the Act for A.Y. 2008-09 on account of being barred by limitation in view of the order of Special Bench of Mumbai in the case of Mahindra & Mahindra Ltd. reported in 122 TTJ (Mum.)(SB). He submits that the said finding of Special Bench was approved by the Hon’ble High Court reported in 365 ITR 560. He vehemently argued that the Miscellaneous Application filed by the Revenue is not maintainable on facts and law and prayed to dismiss the same. 4. Heard both the parties and perused the material available on record. We note, this Tribunal passed consolidated order dated 04-01-2017 in batch of appeals for A.Ys. 2007-08 to 2012-13. The assessee sought rectification for inclusion of “A.Y. 2008-09” vide MA No. 35/PUN/2017. Accordingly, this Tribunal, “A.Y. 2008-09” was inserted in Para No. 32.1 vide order dated 13-11-2017. Now, the Revenue filed present Miscellaneous Application seeking to rectify the mistake “in holding the order u/s. 201(1)/201(1A) of the Act for A.Y. 2008-09 as time barred” by Tribunal claiming the same as mistake apparent on record in the order dated 13-11-2017 in MA Nos. 35 & 36/PUN/2017. The contention of ld. 4 MA No. 89/PUN/2018, A.Y. 2008-09 AR is that very foundation as alleged by the Revenue is incorrect and the prayer in Miscellaneous Application seeking to rectify the mistake in Miscellaneous Application order is not maintainable. 5. Admittedly, this Tribunal passed order in MA Nos. 35 & 36/PUN/2017 by inserting “A.Y. 2008-09” by taking into consideration the submissions of CIT-DR representing the Revenue in such proceedings. We note that the CIT-DR representing Revenue in MA Nos. 35 & 36/PUN/2017 fairly admitted that the finding on limitation for A.Y. 2007-08 is applicable to A.Y. 2008-09 as well and the Tribunal recorded such statement vide Para No. 7 in MA Nos. 35 & 36/PUN/2017. If that is the case, the Revenue is not entitled to come up with present application arguing, that the DR then mistakenly represented the period of limitation for A.Ys. 2007-08 and 2008-09 are similar. In our opinion, is not a mistake apparent on record to be rectified under sub-section (2) of section 254 of the Act. The provisions u/s. 254 of the Act explains that the Tribunal may pass such orders as thinks fit under sub-section (1) of section 254 of the Act. The Tribunal shall make such amendment for the order passed under sub- section (1) with a view to rectify any mistake apparent from the record. Now, in the present Miscellaneous Application Revenue seeking rectification in the order passed under sub-section (2) of section 254 of the Act and there is no provision u/s. 254 of the Act to rectify a mistake apparent on record in the order passed under sub-section (2) of section 254 of the Act. The provisions u/s. 254 of the Act does not confer jurisdiction on the Tribunal to rectify the mistake in the order passed under sub-section (2) of section 254, if we consider the present Miscellaneous Application filed by the Revenue u/s. 254(2) of the Act, it is beyond the scope and ambit of the powers of the Tribunal u/s. 254(2) of 5 MA No. 89/PUN/2018, A.Y. 2008-09 the act. Admittedly, this Tribunal vide order dated 13-11-2017 in MA Nos. 35 & 36/PUN/2017 held the findings given in respect of A.Y. 2007-08 is applicable to A.Y. 2008-09, thus, if the Revenue is aggrieved by such order passed u/s. 254(2) of the Act, in our opinion, the remedy is available to the Revenue under law is to prefer an appeal before the Hon’ble High Court on merits. Thus, Miscellaneous Application u/s. 254(2) of the Act filed by the Revenue, fails and it is dismissed. 6. In the result, the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open court on 26 th May, 2022. Sd/- Sd/- (Inturi Rama Rao) (S.S. Viswanethra Ravi) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; दिनाांक / Dated : 26 th May, 2022. रदव आदेश की प्रधिधलधप अग्रेधर्ि / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The CIT(A)-V, Pune 4. The CIT (TDS), Pune 5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, “बी” बेंच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गार्ड फ़ाइल / Guard File. //सत्यादपत प्रदत// True Copy// आिेशानुसार / BY ORDER, वररष्ठ दनजी सदचव / Sr. Private Secretary आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune