TMI Blog2015 (8) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... eated valid. In our opinion, the order of the FAA does not suffer from any legal infirmity. Provisions of section 201(3) were amended and word six years were substituted by words four years with retrospective effect from 1April 2010. Survey action carried out in October 2010 and the amendment had come on statute before six months. So, the FAA, in our opinion has rightly interpreted the section and the time limit. Time limit depends upon the filing of quarterly/yearly statement. The FAA has emphasized the same point and has directed the AO to make verification, as stated earlier. In these circumstances, we are of the opinion that the order of the FAA does not suffer from any legal infirmity. - Decided against revenue. - ITA Nos. 4878/& 4879 Mum/2013 - - - Dated:- 19-8-2015 - Sh. D. Manmohan and Rajendra, JJ. For The Assessee : Shri S. C. Tiwari For The Revenue : Shri Mohammed Rizwan Per Rajendra, AM Challenging the order dt.24th March 2011 for AY 2004-05 and AY 2005-06 of the CIT(A)-14, the Assessing Officer (AO) has raised various grounds of appeal with regard to the orders passed by the AO u/s. 201(1) and 201(1A) of the Act. The assessee has filed cross ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason 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 circumstances of the case and in law , the Ld CIT (A) has erred in annulling the order passed by the A. O. by treating the same as time barred and did not adjudicate the other issues on which A. O. s order I s based for the reason that very basis of A. O. s Order is without any validity, which calls for restoration. f) On the facts and the circumstancesof the case and in law, the appellant prays that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw the Respondent is not liable to any interest u/s 201(1A) of the act. ITA 4879/Mum/2013for AY 2005-06 by Revenue u/s 201(1) a) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in quashing the order passed by the AO u/s. 201(1)/201(1A) by relying on the CBDT Circular No. 5 of 2010 dated 3rd June, 2010 stating that the TDS proceedings are not validly pending and thereby treating the order u/s. 201(1)/201(1A) as time barred on the grounds that as per clause (i) of section 201(3), the limitation for passing of the order u/s. 201(1) would be two years from the end of the financial year 2005-06 i. E. 31.03.2008. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said person for verification by Ao is unjustified since , the same has already been ascertained during the course of survey proceedings and during the proceedings u/s 201(1) of the I. T. Act 1961 from appointment letter field by the assessee, it can be easily inferred that the remuneration paid to the said person is salary subjected to TDS u/s 192 as against 194J of the acat. f) On the facts and in the circumstances of the case and in law , the LD CIT (A has erred in deleting the total tax demand of ₹ 2,71,928/- raised on account of payments made to Hinduja Foundation and non-deduction of tax on payment made on account of drug handling charges without appreciating the fact of the case came to light during survey proceedings on 4.10.2010 since taking in to account the same , an order u/s 20191) is passed and TDS default was worked out and determined in terms of order dated 23.04.2011 g) On the facts and in the circumstances of the case and in law , the LD. CIT (A) has erred in holding that the assessee s contention as correct in respect of Drug handling charges by applying the provision of section 194C instead of section 194H , as concluded by the AO in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 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 is not liable to any interest u/s 201(1A) of the act. 2. The assessee, a renowned hospital of Mumbai, is engaged in the activity of providing healthcare services and doing medical research. It is managed by National Health Education Society popularly known as P. D. Hinduja Hospital Medical Research Centre (HH). A survey operation under section 133A of the Act was carried out at the hospital premises of the assessee on 04/10/ 2010 for verification of the compliance of the provisions of tax deduction at source (TDS). During the course of survey, statement of Deepak Samant, director(Finance)was also recorded. As a result, proceedings under section 201 (1) of the Act were initiated and the assessee was required to show cause as to why it should not be treated to be an Assessee-in-default(A-I-D)in respect of certain payments. The assessee furnished its reply and various details as required by the AO. After considering the same, the AO passed the orders u/s.201(1) in respect of these assessment years, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . April 2010, that the survey action u/s. 133A was carried out on 04.10.2010, that at that point of time above section were part of the statute, that for the financial year from 2004-05 to 2006-07, as per clause (i) of the section 201(3), the limitation period was two years from the end of FY in which the statement was filed in a case where the statement referred to in section 200 had been filed, that for the FY. Under consideration quarterly/yearly statements of TDS were required to be filed in such form and verified in such manner and within such time as provided in the Act, that if the assessee had filed TDS yearly return/ statement of the 4th quarter same would have been filed in May or June 2004 and April or May 2005 in the FY 2003-04 and 2004-05 respectively, that the limitation for passing of order u/s. 201(1) would be two years from the end of the said FY i. E. 31.03.2006 and 31.03. 2007 respectively, that impugned order had been passed on 24.03.2011, that same was beyond limitation period. He further mentioned that the assessee had not furnished any details about the filing of the quarterly/yearly statements of TDS. He, therefore, directed the AO to verify from his records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were substituted by words four years with retrospective effect from 1April 2010. Survey action carried out in October 2010 and the amendment had come on statute before six months. So, the FAA, in our opinion has rightly interpreted the section and the time limit. Here, it would be useful to refer to CBDT Circular dated 03.06. 2010 and same reads as under: It has been provided that an Order U/s 201(1) for failure to deduct the whole or any part of the tax as required under this Act, if the deductee is a resident taxpayer, shall be passed within two years from the end of the financial year in which the statement of tax deduction at source is filed by the deductor. Where no such statement is filed, such Order can be passed up till four years from the end of the financial year in which the payment is made or credit is given. To provide sufficient time for pending cases, it is provided that such proceedings for the financial year beginning from 1st April, 2007 earlier years can be completed by the 31.03.2011 As the circular has clarified the position about the time limit, soin our opinion now there is no scope for any ambiguity. Time limit depends upon the filing of qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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