2017 (7) TMI 664 - HC - Income Tax

TDS u/s 195 - interest u/s 201(1) and 201(1A) - Held that - We find it difficult to hold that period consumed by Revenue in prosecuting matter against main payee would have resulted in accrual of a right upon Assessee so as to deprive Revenue from proceeding u/s 201 (1) and 201(1A), though, admittedly, Assessee-petitioner has committed default by not complying Section 195 by non-deduction of TDS on the amount paid to Smt. Nidhi Raman. Defence of petitioner that it was misrepresented by seller by not disclosing by any of them that she was an N.R.I. would equally be available to Revenue also for explaining delay and also their bonafide is fortified that they make all possible efforts to recover entire amount of tax from person liable to pay tax and as a last resort they have sought to exercise power under Section 201 (1) and 201(1A) against Assessee. While exercising power of judicial review in the case like present one, it would be appropriate to consider whether power has been exercised by competent authority within a reasonable period and whether delay is unjust, arbitrary, whimsical or it is for valid reasons. If Court finds that delay in exercise of power is for valid and bonafide reasons,alleged delayed exercise of power cannot be held invalid. We, therefore, find ourselves unable to agree with the submission of learned counsel for petitioner that proceedings initiated by respondents-Revenue Authorities under Section 201(1) and 201(1A) is bad being barred by period of limitation.

Summary

Issues Involved:
1. Whether the writ petition should be dismissed due to the availability of a statutory alternative remedy.
2. Whether the notice issued by the Deputy Commissioner of Income Tax (D.C.I.T.) under Section 201(1)/201(1A) is patently without jurisdiction.
3. Whether there is any period of limitation applicable to proceedings under Section 201(1)/201(1A) of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Statutory Alternative Remedy:
The court considered whether the writ petition should be dismissed due to the availability of a statutory alternative remedy. The respondent argued that the petitioner should avail the statutory remedy of appeal before the Commissioner of Income Tax (Appeals) under Section 246 of the Income Tax Act, 1961. The petitioner contended that the impugned notice was issued after an unreasonable delay and was thus without jurisdiction. The court noted that while alternative remedies generally need to be exhausted, exceptions exist where the notice is without jurisdiction or barred by limitation. The court decided to entertain the writ petition due to the legal issues involved and the conflicting judgments from various High Courts.

2. Jurisdiction of Notice Issued by D.C.I.T.:
The petitioner challenged the jurisdiction of the notice issued by D.C.I.T. under Section 201(1)/201(1A) for non-deduction of TDS on payments made to an NRI, Smt. Nidhi Raman. The petitioner argued that it was unaware of the NRI status of the seller and that the notice was issued after an unreasonable delay. The court examined the facts and found that the petitioner had not placed on record the power of attorney to show why Smt. Nidhi Raman was represented by her sister. The court inferred that the petitioner, being a prudent buyer, must have been aware of the NRI status of the seller. The court also noted that the revenue authorities had continuously prosecuted the matter against the main payee, Smt. Nidhi Raman, and only exercised power under Section 201(1)/201(1A) after failing to recover tax from her. Therefore, the court held that the notice was not without jurisdiction.

3. Period of Limitation for Proceedings under Section 201(1)/201(1A):
The court examined whether there is any period of limitation for proceedings under Section 201(1)/201(1A) of the Income Tax Act, 1961. The petitioner argued that the notice was issued after almost ten years from the date of the sale deed and was thus barred by limitation. The court noted that no specific period of limitation is prescribed under Section 201. It referred to various judicial precedents, including the Supreme Court's judgments, which held that in the absence of a prescribed period, power must be exercised within a reasonable time. The court considered the facts and circumstances of the case, including the continuous prosecution by the revenue authorities and the eventual failure to recover tax from the NRI seller. The court concluded that the delay in exercising power was not unreasonable or arbitrary and was for valid reasons. Therefore, the court held that the proceedings were not barred by limitation.

Conclusion:
The court dismissed the writ petition, holding that the proceedings initiated by the revenue authorities under Section 201(1) and 201(1A) were not barred by limitation and were within jurisdiction. The interim order, if any, was vacated.