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Bheemarasetty Sunitha Versus Dy. Director of Income Tax, (IT&TP) Visahapatnam

2017 (8) TMI 476 - ITAT VISAKHAPATNAM

TDS u/s 195A - assessee in default u/s 201(1)/201(1A) - non deduction of tds - period of limitation - Held that:- In the instant case the property was registered on 18.7.2007 and the assessee is liable to deduct the TDS during the F.Y.2007-08 and the 4 years time limit for initiating action u/s 201/201A expires before March 2012. - In the instant case, notice u/s 195 treating the assessee as assessee in default was issued on 11.08.2013 beyond the 4 years of the financial year in which the as .....

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RGA RAO, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER For The Appellant : Shri B.V. Rao, AR For The Respondent : Shri S.R.S. Narayan, DR ORDER PER D.S. SUNDER SINGH, Accountant Member: This appeal filed by the assessee is directed against order of the CIT(A)-10, Hyderabad dated 26.11.2015 for the A.Y. 2008-09. 2. All the grounds of appeal are related to the treatment of assessee as assessee in default u/s 201(1)/201(1A) of the Income Tax Act, 1961 (hereinafter called as the Act .....

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ere is no mention about payments being made between December, 2000 to March, 2006 ignoring the very fact that it was clearly mentioned in the sale agreement cum GPA that the payments were already made and also the fact that the AU solely relied on the Vendor's address in document, without considering the material documentary evidence produced that the payments were made that too in cash from December 2000 to March 2006. Therefore, treating the appellant as assessee in default and upholding t .....

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ions of Sec 195 and treating the appellant as assessee in default is not in accordance with law. 4. Subject to ground No. 2 and 3, the entire purchase consideration was paid from time to time during December 2000 to March 2006 in cash for which there is no dispute and therefore, the very order passed Dt. 31.03.2014 is barred by limitation U/s Sec 201(1)(3)(ii). 5. The appellant crave to submit that all facts, contentions and case laws mentioned in the accompanied statement of facts shall be trea .....

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e property admeasuring 226 Sq.yds. at Allipuram, Visakhapatnam for a consideration of ₹ 49,72,000/- from Sri Gudivada S. Naidu, a Non-resident Indian vide document No.3187 registered on 18.7.2007 before the sub-registrar, Visakhapatnam. The non resident has not filed the return of income for the sale of the asset which resulted in capital gains. As per section 195 of the Act, the assessee required to deduct the tax at source on payment made to the non resident. Since the assessee has not d .....

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er section 201(3), it is within the limitation period and accordingly dismissed the appeal. For ready reference, we extract the relevant paragraph no.6 of the CIT(A) order: Ground no.4 is with regard to the validity of the order passed u/s 201(1)/201(1A). It is the argument of the assessee that as per section 6 of the I.T. Act the vendor was a resident and payments were made during the period December 2000 to March 2006 and no action could have been taken as per the provisions of section 201(3) .....

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raised by the assessee has no merit and dismissed. 4. Appearing for the assessee, the Ld. A.R. argued that in this case, the property was registered on 4.5.2007 relevant financial year was 2007-08 and the impugned order u/s 201(1) & 201(1A) of the Act was passed on 31.3.2014. According to the Ld. A.R., the order u/s 201/201(1A) of the Act should not be passed beyond 4 years as held by Hon ble Delhi High Court in W.P. No.2166/2012 in Bharti Airtel and Another Vs. UOI, 76 taxmann.com 256 (Delh .....

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ents. Ld. D.R. relied on the decision of Hon ble 5 Bombay High Court in the case of DIT (International Taxation) Vs. Mahindra & Mahindra Limited 225 Taxman 0306 wherein it was held that 6 years is the maximum time limit for passing the order u/s 201(1) or 201(1A) of the Act if there is no time limit specified in the Act. Further, the Ld. D.R. argued that in this case, the assessee required to deduct the tax at source but not deducted same and the assessee also failed to furnish the TDS retur .....

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any as is referred to in that subsection does not deduct or after deducting fails to pay the tax as required by or under this Act, he or it shall be liable to pay simple interest at 2 fifteen] per cent per annum on the amount of such tax from the date on which such tax was deductible to the date on which such tax is actually paid.] 7. The Hon ble Delhi High Court while deciding the writ petition in the case of Bharti Airtel & Another rendered the judgement considering the statement of Object .....

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le holding so, the Hon ble High Court has relied on the decision of CIT Vs. NHK Japan Broadcasting Limited [305 ITR 137] and the CIT Vs. Hutchison Essar Telecom. Limited [323 ITR 330], Further, Hon ble Delhi High Court has considered amendment made to Section 201 of the Act vide Finance Bill, 2009 and viewed that the Parliament did not make any amendment to the time limits for the non residents which indicates that the Parliament has accepted the judicial pronouncements for the limitation period .....

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