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2016 (8) TMI 509 - DELHI HIGH COURT

2016 (8) TMI 509 - DELHI HIGH COURT - [2016] 385 ITR 436 - Validity of the action initiated under Sections 201(1) and 201(1A) - non-deduction of tax at source for periods earlier than four years prior to 31st March, 2011 - Held that:- Circular 5 of 2010 of CBDT clarifying that the proviso to Section 201(3) of the Act was meant to expand the time limit for completing the proceedings and passing orders in relation to ‘pending cases’. The said proviso cannot be interpreted, as is sought to be done .....

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012 - Dated:- 9-3-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr. M.S. Syali, Senior Advocate with Ms. Sonia Mathur, Mr. Aseem Mowar, Mr. Mayank Nagi, Mr. Rakshit Thakur, Ms. Husnal Syali and Mr. Tarun Singh, Advocates. For the Respondents : Mr. Anuj Aggarwal with Mr. Subhanshu Gupta, Advocates for UOI. Mr. Dileep Shivpuri, Senior Standing Counsel and Mr Zoheb Hossain, Junior Standing Counsel for the Revenue. W. P. (C) 8535/2011 & CM APPLS 19305/2011, 9781/2012,W.P.(C) 85 .....

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t Income Tax Department ('Department') against the Petitioners under Sections 201(1) and 201(1A) of the Income Tax Act, 1961 ( the Act ) for non-deduction of tax at source ( TDS ) for periods earlier than four years prior to 31st March, 2011. These petitions in turn involve the interpretation of the proviso to sub-section (3) of Section 201 of the Act, which was inserted with effect from 1st April, 2010. 2. Although the facts of these cases are more or less similar, the facts pertaining .....

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uchers (RCVs) and Starter Kits to channel partners. The RCVs are the pre-paid vouchers used for selling validity and talk time to the pre-paid subscribers. The Starter Kits are the new connections containing Removable User Identity Module (RUIM) cards for providing telecommunication connection. 3. The products are sold by TTSL to the channel partners under valid tax invoices. TTSL recovers sales tax and service tax for the said transactions. The channel partner thereafter sells these products to .....

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ers and retailers taken together. Further, the amount that is realised by channel partners or retailers separately is not known to TTSL at any point of time. 4. According to TTSL, the transaction between it and the channel partner is on a principal to principal basis. It is explained that under a principal and agent relationship, commission is paid subsequent to the happening of the incident, i.e. post the recovery of the MRP price, and thus it is termed as commission. However, under a principal .....

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ach of the relevant Assessment Years (AYs) [for WP (C) No. 8642/2011 the relevant AY being 2001-2002]. It may be noticed at this stage that the Karnataka High Court in a decision Bharti Airtel Ltd. Vs. Deputy Commissioner of Income-Tax (2015) 372 ITR 33 (Kar) held that no TDS is recoverable from the payments made by cell phone companies to the distributors where the products sold were pre-paid cards. 6. Section 201 as it stood prior to the amendment [which introduced sub-section (3) with effect .....

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, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax: Provided that no penalty shall be charged under section 221 from such person, unless the Assessing Officer is satisfied that such person, without good and sufficient reasons, has failed to deduct and pay such tax. (1A)Without prejudice to the provisions of sub-section (1), if .....

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t for each quarter in accordance with the provisions of sub-section (3) of section 200. (2) Where the tax has not been paid as aforesaid after it is deducted, the amount of the tax together with the amount of simple interest thereon referred to in subsection (1A) shall be a charge upon all the assets of the person, or the company, as the case may be, referred to in sub-section (1). 7. In CIT vs. NHK Japan Broadcasting Corporation (2008) 305 ITR 137 (Del.) the question that arose was whether the .....

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from the global salary . These facts came to light when the Department undertook a survey on 19th November, 1998. In December, 1999, the Assessee was asked to explain why it should not be treated as an Assessee in default. After the reply was filed by the Assessee, the AO passed an order treating the said Assessee as an Assessee in default for the purposes of Section 201 of the Act and this was upheld by the Commissioner of Income Tax (Appeals) [CIT(A)]. However, the Income Tax Appellate Tribuna .....

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eted within two years from the end of the AY in which income was first assessable. It also noted that the ITAT had in a series of decisions taken the view that four years would be a reasonable time for initiating action, in case where no limitation is prescribed. In CIT vs. NHK Japan Broadcasting Corporation (supra), the ITAT had applied the same aspect and reversed the decision of the CIT(A). This Court then held as under: 21. We are not inclined to disturb the time limit of four years prescrib .....

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imary liability to pay tax is on the person whose income it is that is the deductee. Of course, a duty is cast upon the deductor, that is the person who is making the payment to the deductee, to deduct tax at source but if he fails to do so, it does not wash away the liability of the deductee. It is still the liability of the deductee to pay the tax. In that sense, the liability of the deductor is a vicarious liability and, therefore, he cannot be put in a situation which would prejudice him to .....

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held that proceedings under Section 201(1) and 201(1A) of the Act can be initiated only within three years from the end of the Assessment Year or within four years from the end of the relevant Financial Year. 11. In the meanwhile, by way of Finance (No. 2) Act, 2009 with effect from 1st April, 2010 sub-sections (3) & (4) along with provisos were inserted, the relevant extract of which read as under: (3) No order shall be made under sub-section (1) deeming a person "to be an assessee in .....

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e passed at any time on or before the 31st day of March, 2011. (4) The provisions of sub-clause (ii) of sub-section (3) of section 153 and of Explanation 1 to section 153 shall, so far as may, apply 'to the time limit prescribed in sub-section (3). 12. The Statement of Objects and Reasons of the Finance (No. 2) Bill, 2009 in relation to the amendment to Section 201 of the Act read as under: Sub-clause (b) of clause 65 seeks to provide time limit for passing of order under sub-section (1) of .....

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r shall not be made at any time after four years from the end of the financial year in which payment is made or credit is given. It further provides that such order for a financial year commencing on or before 1st day of April, 2007 may be passed at any time on or before the 31st day of March, 2011. The sub-clause also provides that the provisions of sub-clause (ii) of sub-section (3) of section 153 and of Explanation 1 to section 153 shall, so far as may apply to the time limit prescribed in pr .....

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of such a time limit, disputes arise when these proceedings are taken up or completed after substantial time has elapsed. In order to bring certainty on this issue, it is proposed to provide for express time limits in the Act within which specified order u/s 201(1) will be passed. It is proposed 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 fi .....

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d for order under sub-section(1) of section 201 where- (a) the deductor has deducted but not deposited the tax deducted at source, as this would be a case of defalcation of government dues, (b) the employer has failed to pay the tax wholly or partly, under sub-section (1A) of section 192, as the employee would not have paid tax on such perquisites, (c) the deductee is a non-resident as it may not be administratively possible to recover the tax from the non-resident. It is proposed to make these .....

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ular issued by the CBDT, the Department understood the above amendment as permitting it to initiate proceedings under Section 201 of the Act for treating an Assessee as an Assessee in default even in respect of alleged failure to deduct TDS for a period more than four years earlier to 31st March, 2011. 16. This question, after the amendment to Section 201 of the Act brought about by the Finance (No. 2) Act, 2009 with effect from 1st April, 2010 came up for consideration by this Court in ITA No.5 .....

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default, after the period of four years. This Court is conscious that the text of the provision nowhere limits the exercise of powers. Equally, there are several provisions of enactment, i.e., Sections 143 (2), 147, 148 and 263, and even through introduction of specific provisions in Section 153 of the Act, where the time limit is specifically prescribed. At the same time, this Court in NHK Japan (supra) was of the opinion that the power to treat someone as assessee in default is too drastic, va .....

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e.f. 1.4.2010 by Finance Act No.2/2009. This substitution was in turn amended w.e.f. 1.10.2014 - by Finance Act No.2/2014. As a result, the provision which exists as on date is as follows: - 201. (3) No order shall be made under sub-section (1) deeming a person to be an assessee in default for failure to deduct the whole or any part of the tax from a person resident in India, at any time after the expiry of seven years from the end of the financial year in which payment is made or credit is give .....

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did not spell out any time limit before it did eventually in 2009 - and subsequently in 2014 - would not lead to the sequitur that this Court s ruling in NHK Japan requires consideration. In that judgment, the Division Bench had given various reasons, including the application of the rationale in Bhatinda District (supra). In NHK Japan, the Court had noticed that the facts in Bhatinda District (supra) judgment concern exercise of jurisdiction by a statutory authority in the absence of specific .....

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to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in Sub-section (6) of Section 11 of the Act is five years. 9. More recently in Commissioner of Income Tax-III v. Calcutta Knitwears, Ludhia .....

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nitiated, the Court limited such discretion in the following terms: 44. In the result, we hold that for the purpose of Section 158BD of the Act a satisfaction note is sine qua non and must be prepared by the assessing officer before he transmits the records to the other assessing officer who has jurisdiction over such other person. The satisfaction note could be prepared at either of the following stages: (a) at the time of or along with the initiation of proceedings against the searched person .....

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in a retrospective amendment, nullifying the precedent itself. That it chose to bring Section 201 (3) in the first instance in 2010 and later in 2014 fortifies the reasoning of the Court. Accordingly, the issue is answered against the Revenue. 17. It appears to the Court that the above decision settles the question whether to declare an Assessee to be an Assessee in default under Section 201 of the Court could be initiated for a period earlier than four years prior to 31st March, 2011. 18. Mr. .....

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viso to Section 201(3) of the Act has to be read consistent with the law explained by the Court in CIT vs. NHK Japan Broadcasting Corporation (supra) and should be held not to permit the Department to initiate proceedings for declaring Assessees to be Assessees in default for a period more than four years prior to 31st March, 2011. 19. Mr. Dileep Shivpuri, the learned Senior Standing Counsel for the Revenue, however, seeks to advance a different line of argument. According to him the action take .....

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of Mr. Shivpuri cannot be accepted if Section 153 is perused carefully. It reads as under: 153. Time limit for completion of assessments and reassessments ...... (3) The provisions of sub- sections (1), (1A), (1B) and (2) shall not apply to the following classes of assessments, reassessments and recomputations which may, subject to the provisions of sub- section (2A), be completed at any time- ...... (ii) where the assessment, reassessment or recomputation is made on the assessee or any person .....

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ce of or to give effect to any finding or direction contained in an order........ or in an order of any court in a proceeding otherwise than by way of appeal or reference under this Act. This can apply only to the Assessee in whose case such an order is made by a Court. For instance, if the above decision was qua Idea Cellular Ltd. then it certainly cannot form the basis for initiating proceedings qua other Assessees. 22. Secondly there has to be a finding or directions as regards the issue in q .....

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g or direction to the Department by the Court requiring it to initiate proceedings for declaring the Assessee to be an Assessee in default. The Court is, therefore, of the view that the reliance by the Department on Section 153(3)(ii) of the Act and the decision in CIT v. Idea Cellular Ltd. (supra) to justify initiation of the proceedings in the present case against the Petitioner is misconceived. 23. It was then contended by Mr. Shivpuri, that the decision in CIT vs. NHK Japan Broadcasting Corp .....

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h, 2011. 24. The Court is unable to agree with the above submission of Mr. Shivpuri. As the Court sees it, its decision in NHK Japan Broadcasting Corporation(supra) deals precisely with the situation where proceedings were sought to be initiated more than four years prior to 31st March, 2011. That law explained in NHK Japan Broadcasting Corporation (supra) has not changed by the introduction of proviso to sub-section (3) to Section 201 by the Finance (No. 2) Act, 2009. Mr. Shivpuri was unable to .....

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that orders had to be passed by 31st March, 2011. 25. The Court is unable to agree with this approach of the Department either. There is no question of 'harmonious construction' of a CBDT Circular issued by the CBDT. At best, it is an external aid of construction of Section 201(3) and the proviso thereto. The Circular also gives an instance of contrary understanding of the legal position by the Department itself. It is well settled that if a Circular issued by the Department favours an .....

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, as on the date of the transfer, the fair market value of the property exceeded the full value of the consideration declared by the Assessee by an amount of not less than 15% of the value so declared. The Supreme Court held in favour of the Assessee, and in doing so referred to the fact that there were two CBDT circulars on the interpretation of Section 52 (2) of the Act that supported the case of the Assessee. The Court observed: "These two circulars of the Central Board of Direct Taxes a .....

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ty, though it must give way where the language of the statute is plain and unambiguous. This rule has been succinctly and felicitously expressed in Crawford on Statutory Construction (1940 ed) where it is stated in paragraph 219 that "administrative construction (i. e. contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction, commonly referred to as practical c .....

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construe, execute and apply it." and this statement of the rule was quoted with approval by this Court in Deshbandhu Gupta & Co. v. Delhi Stock Exchange Association Ltd. (1979) 3 SCR 373 It is clear from these two circulars that the Central Board of Direct Taxes, which is the highest authority entrusted with the execution of the provisions of the Act, understood sub-section (2) as limited to cases where the consideration for the transfer has been under- stated by the assessee and this .....

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and they depart or deviate from such construction. It is now well-settled as a result of two decisions of this Court, one in Navnitlal C. Jhaveri v. K. K. Sen AIR 1965 SC 1922 and the other in Ellerman Lines Ltd. v. Commissioner of Income-tax, West Bengal AIR 1972 SC 524 that circulars issued by the Central Board of Direct Taxes under section 119 of the Act are binding on all officers and persons employed in the execution of the Act even if they deviate from the provisions of the Act." 27. .....

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uance of the notification could be looked at for finding out the true intention of the Government in issuing the notification in question, particularly in regard to the manner in which outstanding transactions were to be closed or liquidated. The principle of contemporanea expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the question of construction. (M .....

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In Baleshwar Bagarti v. Bhagirathi Dass (supra) the principle, which was reiterated in Mathura Mohan Saha y. Ram Kumar Saha 35 Ind Cas 305 has been stated by Mukerjee J. thus: It is a well-settled principle of construction that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it. I do not suggest for a moment that such interpretation has by any means a con .....

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dation of all outstanding transactions by entering into a forward contract in accordance with the rules, bye-laws and regulations of the respondent. 28. Circular 5 of 2010 of CBDT clarifying that the proviso to Section 201(3) of the Act was meant to expand the time limit for completing the proceedings and passing orders in relation to pending cases . The said proviso cannot be interpreted, as is sought to be done by the Department, to enable it to initiate proceedings for declaring an Assessee t .....

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