9911796707
TMI Blog2015 (8) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... the financial year 2004-05 i. E. 31.03.2007 and as per clause (ii) of section 201(3) , the time period of six years from the end of the financial year 2003-04 shall expire on 31.3.2010. Since the order is passed on 24.03.2011, the order passed by the AO is held by the CIT (A) to be beyond limitation period without appreciating the fact that as per the proviso to section 201(3), the order u/s. 201(1)/201 (1A) for a financial year commencing on or before the 151 day of April 2007 may be passed at any time on or before the 31st day of March 2011. The CBDT Circular NO.5 referred by the Ld. CIT (A) is only clarificatory and cannot over ride this statute. b) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) had erred in holding that the order passed by the A. O. u/s. 201(1) dated 24.03.2011 is beyond limitation period as per provision of section 201 (3) of the I. T. Act and proceeded to annul the impugned order when the Ld. CIT(A) was aware of the fact that a survey action u/s. 133A of the I. T. Act in the case of the assessee had been conducted on 04.10.2010 and order u/s 201 (1) was passed on 24.03.2011 which is well within the time limit since section 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary at the time of the hearing of the case or thereafter" 3. The order of the Ld. CIT (A) being erroneous be set aside and the A. O.'s order be restored". CO No 211/M/2014 in Appeal No 4878/M/2013 A Y 2004-05 By Assessee 1. The Learned CIT (A) has rightly held that the order u/s 201/201(1A) made by ITO (TDS ) in the case of respondent on 24th march 2011 in relation to assessment year 2004-05 is barred by limitation. 2. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the case of the respondent and in law the respondent should not be deemed to be an assessee in default as held by ITO (TDS) in respect of the payments made to hospital based consultants. 3. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the case of the respondent and in law the Respondent should not be deemed to be an assessee in default as held by ITO (TDS) in respect of the payments made to Hinduja Foundation. 4. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the case of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence, order passed u/s. 201 (1) dated 24.03.2011 is valid one c) On the facts and circumstances of the case and in law, the Ld. CIT(A) had erred in annulling the order passed by the A. O. u/s. 201 (1 )/201 (1A) by observing that the impugned order is statutorily beyond the period of limitation without appreciating the fact that the proceedings under the said section pursuant to survey stand valid for the reason that the assessee had filed incomplete TDS statements u/s. 200 as mandated under the Income-tax Act, 1961 which fact was unearthed and came to light during the survey proceedings of the department. d) On the facts and circumstances of the case and in law, the Ld. CIT (A) had erred in annulling the order passed by the A. O. u/s.201(1 )/201(1A) without appreciating the fact that as per circular NO.5 of 2010 issued by CBDT wherein it was clarified that the A. O. can complete TDS proceedings for a financial beginning from 01.04.2007 and earlier year's by 31.03.2011. In other words by virtue of assessees filling incomplete TDS statements the survey and the proceedings u/s. 201(1 )/201(1A) are validly pending before the Income-tax Authorities. e) On the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accepted by the department and appeal to ITAT had been filed". 2. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary at the time of the hearing of the case or thereafter" 3. The order of the Ld. CIT (A) being erroneous be set aside and the A. O.'s order be restored". CO No 212/M/2014 in Appeal No 4879/M/2013 A Y 2005-06 By Assessee 1. The Learned CIT (A) has rightly held that the order u/s 201/201(1A) made by ITO (TDS ) in the case of respondent on 24th march 2011 in relation to assessment year 2005-06 is barred by limitation. 2. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the case of the respondent and in law the respondent should not be deemed to be an assessee in default as held by ITO (TDS) in respect of the payments made to hospital based consultants. 3. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the case of the respondent and in law the Respondent should not be deemed to be an assessee in default as held by ITO (TDS) in respect of the payments made to Hinduja Foundation. 4. The Learned CIT (A) has erred in not holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Year Alleged Short Deduction Rs. Year of Alleged Default Action U/s 201 4.10.10 U/s 201 * Law as on date of default will apply: Benett Coleman & Co. Ltd. v. V. P. Damle(1986) 157 ITR 812(Bom) 2004-05 04,92,61,089/- 31.03.04 *6years Time Limit for completion of Assessment over 2005-06 05,46,47,787/- 31.03.04 *5 years Time Limit for completion of Assessment over 2006-07 05,77,89,288/- 31.03.04 *4 years Time Limit for completion of Assessment over It was contended that subsequent to insertion of proviso to section 201(3) or prior to that order passed u/s. 201/201(A) would not survive as same were ab-initio bad in law. After considering the submission of the assessee and the orders passed by the AO u/s. 201(1) and 201(1A) of the Act, the FAA held that section 201(3) and 201(4) had been insertedin the statute by Finance Act 2009 w. E. F. 01.04.2010. He referred to the provisions of section 201(1) and section 153(3) (ii) and explanation 1. He held that time period of six years in clause-2 of the above section 201(3) had been substituted for four years with retrospective effect from 01.04.2010 by Finance Act, 2012, that sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case as well as the orders of ITAT in case of the appellant for AY. S.2006-07 to 2010-11 and we are satisfied that issues covered in those appeals are identical to the facts and issues of the present appeals. The issue time limit for passing the orders u/s.201(1)has already been decided in case of the assessee in Appeal No 4935/M/ 2013 and 4937/M/0213 for AY 2006-07 in para no 5 as under :- "We find that the FAA has not given any direct finding. He had given direction to the AO to find out the details of filing of quarterly statements for the year considerationand 'to verify for his records as to whether the assessee had filed the necessary quarterly statements (or yearly TDS return)'. He further held that if the quarterly statement as required under section 201(3) had been filed with the due dates, the order passed by the AO was invalid and had to be annulled. He also mentioned that the assessee had not filed the TDS statements for the year under appeal as per law the case would be governed by the provisions of section 201(ii) of the Act and the impugned order passed would be treated valid. In our opinion, the order of the FAA does not suffer from any legal infirmity. Provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st u/s 201(1A)charging interest on shortfall in deduction of tax at sources also do not survive. Following our order passed u/s.201(1)of the Act, where we have decided the effective ground of appeal against the AO, we hold that the order of the FAA does not suffer from any legal infirmity and therefore the orders charging interest u/s 201(1A)also do not survive. C. O/191 for AY 2004-05 and CO No 192/Mum/2014 for AY 2005-06 7. Both these COs are preferred by Assessee are in support of the order of the FAA. We have already upheld the order of the FAA while deciding the issue of time limit. Therefore, GOA 1 is decided in favour of the assessee. 8. Ground No 2 of the CO is regarding non-chargeability of interest u/s 201(1A) of the act. As we have already upheld that orders passed for both the years u/s 201(1) of the act by FAA does not suffer from legal infirmity, so, the grounds regarding charging of interest become infructuous. Therefore, same stands dismissed. C. O/211 for AY 2004-05 and CO No 212/Mum/2014 for AY 2005-06 9. Both the Cos filed by assessee are supportingthe order of the FAA as well contesting the issues on merit. We have already upheld the order of the FAA whil ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
