9911796707
TMI Blog2005 (1) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding to decide these appeals on merits, we would first deal with the plea of limitation raised by the learned counsel for the assessee before us. According to the assessee for the financial years 1986-87 to 1991-92 the orders under sections 201(1) and 201(1A) were passed on 5-6-1996 i.e., more than four years after the last day of the financial year. According to the learned counsel, although no time-limit to pass orders under sections 201(1) and 201(1A) has been prescribed in the statute, a reasonable time limit is required to be read in these provisions. The learned counsel pointed out that this issue had been considered by the Tribunal in a number of cases and it had been laid down that four years from the end of the financial year in question should be treated to be the maximum limit within which an order under section 201(1) or 201(1A) should be passed by the Assessing Officer. The learned counsel for the assessee has cited the following Tribunal decisions in support of his contention : 1.Raymond Woollen Mills Ltd. v. ITO [1996] 57 ITD 536 (Bom.); 2.Sheraton International Inc. v. Dy. CIT [2003] 85 ITD 110 (Delhi); 3.Sahara Airlines Ltd. v. Dy. CIT [2002] 83 ITD 11 (Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Smt. Tarulata Shyam v. CIT [1977] 108 ITR 345. The learned DR also mentioned that in the decision in U.P. State Industrial Development Corpn. Ltd. v. ITO [2002] 81 ITD 173 (Lucknow), the Tribunal acknowledged that there was no time-limit fixed for passing an order under sections 201(1) and 201(1A). 7. On merits, the learned DR argued that on the facts and in the circumstances of the appeals before us, no reasonable person would say that there was any unreasonable delay on the part of the Assessing Officer in passing the order under sections 201(1) and 201(1A). He pointed out that the assessee airline made various payments to its employees without deduction of tax at source. Furthermore in the salary certificate and certificate of deduction of tax at source in Form No. 16, the assessee omitted to mention those payments. As a result, the factum of payments in question and non-deduction of tax at source by the assessee was done behind the back of the department and those facts were kept away from the scrutiny of the department. In such circumstances, the Assessing Officer could proceed to initiated action under sections 201(1) and 201(1A) only when the facts of the case came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, the same had already been considered by the Tribunal in the case of Raymond Woollen Mills Ltd. (supra) as well as Mitsubishi Corpn.'s case (supra). 10. The learned counsel for the assessee argued that judicial authorities must fix some reasonable time-limit in the absence of a statutory time-limit. It was not a new concept. In tax matters it dated back to the judgment of Hon'ble Supreme Court in CIT v. Narsee Nagsee & Co. [1960] 40 ITR 307. He pointed out that the judgment in CIT v. Narsee Nagsee & Co. [1960] 40 ITR 307 (SC) has once again been reiterated in a very recent judgment of Hon'ble Supreme Court in Union of India v. British India Corpn. Ltd. [2004] 268 ITD 4811. The judgment of Hon'ble Calcutta High Court in the case of CIT v. Backwood Hodge (India) (P.) Ltd. [1971] 81 ITR 807 was no longer a good law because in the judgment in ITO v. Delhi Development Authority [2001] 252 ITR 7722 (SC) Hon'ble Supreme Court had held that an order under section 201 is an assessment order. In relation to the judgment of Hon'ble Calcutta High Court in the case of British Airways (supra ), the learned counsel pointed out that Hon'ble High Court did not consider the question of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay in the deposit of tax to the account of Government for assessment years 1978-89 to 1986-87. The Assessing Officer passed orders on 21-5-1990 levying interest under section 201(1A) of the Act. The assessee argued before the learned CIT(Appeals) that the Assessing Officer was not justified in charging interest after such a long lapse of time even if there were not limits provided in the provisions of section 201(1A). Being unsuccessful before the learned CIT(Appeals), Raymond Woollen Mills Ltd.'s case (supra) filed further appeal before the Tribunal. 15. While passing order on the facts as mentioned in the preceding paragraph, the Hon'ble Tribunal noted that as per the judgments of Hon'ble Calcutta High Court in the case of Grindlays Bank Ltd. v. CIT [1992] 193 ITR 457 and in the case of British Airways v. CIT [1992] 193 ITR 439 (Cal.) levy of interest under section 201(1A) was not barred by limitation. However, the Hon'ble Tribunal preferred to rely upon the judgment of Kerala High Court in the case of K. Iswara Bhatt v. CIT [1993] 200 ITD 2381 wherein it was held as follows : "It is trite law that statutory powers must be exercised bona fide, reasonably, without negligence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. counsel for the assessee that no period of limitation is prescribed for passing of such orders but it was contended by him that such orders must be passed within the reasonable period. In this connection, he relied on the decision of the Calcutta High Court in the case of CIT v. Dunlop Rubber Co. (India) Ltd. [1980] 121 ITR 476 and the decision of the Tribunal in the case of Raymond Woollen Mills Ltd. v. ITO [1996] 57 ITD 536 (Bom.) wherein it has been held that period of 4 years is a reasonable and, therefore, any order passed after that period should be held to be invalid. 43. On the other hand, the ld. Sr. DR has submitted that no period of limitation is provided under section 201(1) and no court can import anything into the statute. In this connection, he relied on various decisions reported as Dy. CIT v. Central Concrete & Allied Products Ltd. [1999] 236 ITR 595 (Cal.), Laxmandas Pranchand v. Union of India [1998] 234 ITR 261 (MP)/AIR 1990 SC 993 (sic). It was further submitted that the issue is covered directly by the decision of Calcutta High Court in the case of CIT v. Blackwood Hodge (India) (P.) Ltd. [1971] 81 ITR 807 and, therefore, such orders cannot be quashed if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcutta High Court was contrary to the decision of the Hon'ble Supreme Court in the case of S.B. Gurbux Singh v. Union of India AIR 1976 SC 1115. However, the Hon'ble Tribunal did not notice another judgment of the Hon'ble Calcutta High Court in the case of British Airways v. CIT [1992] 193 ITR 4391, which in turn is based upon the judgment of the Hon'ble Supreme Court in the case of Raja Jagdish Pratap Sahi v. State of Uttar Pradesh [1973] 88 ITR 443. 18. The third case relied upon by the learned counsel for the assessee is the decision of Income-tax Appellate Tribunal, Delhi Bench "D" in the case of Sheraton International Inc. v. Dy. CIT [2003] 85 ITD 110 . That judgment has been given by the Hon'ble Tribunal in the context of the provisions of section 142(1) read with section 144 and the issue has been decided in favour of the revenue. However, the learned counsel for the assessee has referred to the observations of the Bench at page 118 of the order, wherein only a reference has been made to certain judgments and it has been held that a notice should be issued within reasonable period. We do not find any assistance from this decision of the Tribunal to the proposition of the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so submitted that it is a well settled legal position that nothing can be read into the provisions where such provisions are clear and unambiguous. Reliance was placed on Supreme Court as 254 ITR 154 and Smt. Tarulata Shyam v. CIT [1977] 108 ITR 345 . It was alternatively submitted that period of 4 years should be counted from the end of the year in which necessary details were filed by the assessee. Since all the details were filed in 1998, the impugned order was in time. It was also submitted that the decision of the Tribunal relied upon by the assessee is distinguishable on facts." 20. It is seen by us that there is no dispute in the order of the Tribunal in the case of Mitsubishi Corpn. (supra) that in view of the judgments of Hon'ble Calcutta High Court in the case of British Airways v. CIT [1992] 193 ITR 4391 and in the case of CIT v. Blackwood Hodge (India) (P.) Ltd. [1971] 81 ITR 807 (Cal.), an order under sections 201(1) and 201(1A) cannot be rendered inoperative for the reason of any perceived delay in passing of those orders. However, the Tribunal have preferred to follow its own orders in the case of Raymond Woollen Mills Ltd. (supra) and Sahara Airlines Ltd. (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the end of the financial year in operation in respect of every order under sections 201(1) and 201(1A) made or to be made by the Assessing Officer. (ii)Factual background in the appeals before us is vastly different and distinguishable from the facts of the cases relied upon by the assessee. We see considerable force in the contention of the learned DR that there was no unreasonable delay on the part of the Assessing Officer. The assessee made certain payments to its employees on different counts but did not deduct tax at source. This fact was not highlighted by the assessee in certificate of tax deduction at source issued in Form No. 16. The Assessing Officer was thus left unaware of the facts relating to non-deduction of tax at source by the assessee. After the Assessing Officer became aware of the facts of the case, he acted promptly. The Assessing Officer cannot be defaulted for not having acted upon the facts that were not placed before him and which he could not have enquired into or obtained in the ordinary course. As against this, we find the facts in the case of Raymond Woollen Mills Ltd. (supra) vastly different. In that case, every year the assessee filed returns of ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
