2018 (3) TMI 1758 - AT - Income Tax

Demand u/s 201(1A) - proceedings barred by limitation - default on account of failure to deduct the whole or any part of tax - whether the order passed by the TDS officer is void ab initio and bad in law being passed beyond limitation period as contended by the assessee? - HELD THAT - The time limit for initiation of proceedings u/s 201(1) in the hands of the present assessee for the assessment years under consideration has expired long back prior to insertion of sec. 201(3) by Finance Act No.2 of 2009. The Hon ble Gujarat in the case of Tata Teleservices 2016 (8) TMI 509 - DELHI HIGH COURT has considered the Memorandum of Finance Bill No.2 of 2009 explaining the provisions of sec. 201(3) as held that in respect of F.Y 2007-08 and earlier years only proceedings that were pending could be completed by 31.3.2011 and as such no fresh proceedings could be commenced for the said period. (Paragraph 12.07 of the order). In the instant cases we have held that the proceedings have become time barred prior to 01-04-2007 and hence no fresh proceedings could be commenced for the impugned years by virtue of the proviso to sec. 201(3) of the Act. Accordingly we hold that the initiation of proceedings u/s 201(1) of the Act for the assessment years 2000-01 to 2004-05 is barred by limitation. Accordingly we quash the orders passed by the tax authorities for the above said years. Demand for short deduction of tax as well as for non-payment of tax - Assessment Year 2007-08 - A perusal of the order passed u/s 201(1)/(1A) would show that the AO has raised demand for short deduction of tax as well as for non-payment of tax after its deduction. We notice that the ld CIT(A) has wrongly applied the provisions of sec. 201(3) for the case of non-payment of tax after its deduction. We notice that there is no discussion about the same. Hence we are of the view that the issue relating to non-payment of tax after its deduction should be adjudicated afresh by Ld CIT(A) as the provisions of sec. 201(3) shall not apply to the same. Accordingly while upholding the order of Ld CIT(A) for the issue relating to short deduction of tax at source we restore the issue relating to non-payment of tax after its deduction to his file for adjudicating the same afresh after hearing the assessee.

Issues Involved:
1. Validity of proceedings initiated under Section 201(1) of the Income Tax Act.
2. Applicability of Section 194J to Interconnect Usage Charges (IUC).
3. Treatment of the assessee as an assessee in default despite tax payments by payees.
4. Levy of interest under Section 201(1A).
5. Initiation of penalty proceedings under Section 271(c).
6. Time-barred nature of orders passed under Section 201(1) and 201(1A).

Detailed Analysis:

1. Validity of Proceedings Initiated Under Section 201(1) of the Income Tax Act
The assessee argued that the proceedings initiated under Section 201(1) were barred by limitation. The TDS Officer issued a letter on 08.03.2004 calling for details, but a proper show cause notice was only issued on 02.12.2010. The Tribunal held that the initial letters were not proper notices and the proceedings initiated on 02.12.2010 were beyond the four-year limitation period prescribed by the Delhi High Court in the case of NHK Japan Broadcasting Corporation. Consequently, the orders passed by the TDS Officer for the assessment years 2000-01 to 2004-05 were quashed as time-barred.

2. Applicability of Section 194J to Interconnect Usage Charges (IUC)
The assessee contended that it was not liable to deduct tax under Section 194J on IUC payments. The CIT(A) restored the issue to the AO to decide afresh based on the Supreme Court judgment in CIT vs. Bharti Cellular Ltd. The Tribunal upheld this decision, directing the AO to reconsider the applicability of Section 194J to IUC payments.

3. Treatment of the Assessee as an Assessee in Default Despite Tax Payments by Payees
The assessee argued that it should not be treated as an assessee in default since the taxes had been paid by the payees. The CIT(A) directed the AO to verify the tax payments by the payees and take appropriate action. The Tribunal upheld this direction, emphasizing the need for verification of tax payments by the payees before treating the assessee as in default.

4. Levy of Interest Under Section 201(1A)
The CIT(A) had directed the AO to recompute interest under Section 201(1A) after deciding the applicability of Section 194J to IUC payments. The Tribunal dismissed the revenue's appeal on this issue, as the primary issue of limitation had already quashed the orders for the relevant assessment years.

5. Initiation of Penalty Proceedings Under Section 271(c)
The assessee challenged the initiation of penalty proceedings under Section 271(c). The CIT(A) dismissed this ground as premature, and the Tribunal upheld this decision, noting that penalty proceedings could only be initiated after the primary issues were resolved.

6. Time-Barred Nature of Orders Passed Under Section 201(1) and 201(1A)
The Tribunal extensively discussed the time-barred nature of the orders passed under Section 201(1) and 201(1A). It concluded that the orders for the assessment years 2000-01 to 2004-05 were time-barred based on the limitation periods prescribed by the courts. However, for the assessment year 2007-08, the Tribunal restored the issue of non-payment of tax after its deduction to the CIT(A) for fresh adjudication, as the provisions of Section 201(3) did not apply to non-payment cases.

Conclusion:
- Appeals by the assessee for assessment years 2000-01 to 2004-05 were allowed.
- Cross appeals by the revenue for the same years were dismissed.
- Revenue's appeals against orders passed under Section 201(1A) for the same years were dismissed.
- Revenue's appeal for the assessment year 2007-08 was partly allowed, with the issue of non-payment of tax after deduction restored to the CIT(A) for fresh adjudication.

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