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TMI Blog2015 (8) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ee’s case, accordingly, fails for all the years. On the merits of the demand raised, on which no arguments were made and, consequently, not urged or responded to by the other side as well, the matter stands squarely covered by the decision by the co-ordinate Bench in the assessee’s case (to which both of us are incidentally a party), confirming the impugned order. It is, however, as afore-stated, open for the assessee to lead evidence before the Assessing Officer (A. O.) as to the satisfaction of the tax demand on the interest income in the hands of the deductee/s, to which extent therefore no recovery can in law be effected. The recovery of interest demand u/s. 201(1A) would again follow the prescription of the tribunal’s order, rendered following the decision in the case of Hindustan Coca Cola Beverage (2007 (8) TMI 12 - SUPREME COURT OF INDIA) and CIT vs. ELI Lilly and Company (India) (P.) Ltd. [2009 (3) TMI 33 - SUPREME COURT]. We decide accordingly. - I.T.A. Nos.111 to 114/Pat/2012 - - - Dated:- 22-7-2015 - SHRI A. D. JAIN AND SHRI SANJAY ARORA, JJ. For The Appellant : Shri Sanjeev Kr. Anwar, Adv. For The Respondent : Shri. Suman Kr. Mishra, Jr. S. C. ORD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76 1st April 02 1,35,724 2002-03 8,95,621 10 89,562 58,663 64 1st April 03 1,48,225 2003-04 8,21,243 10 82,124 42,704 52 1st April 04 1,24,828 Total 2,93,587 2,25,018 5,18,605 The ld. CIT(A), in appeal, held that there is no bar in terms of time limit for the levy of tax u/s.201(1) or for the charge of interest u/s.201(1A) under the Act. Imposing a time limit of four years or six years, as had been done by the Tribunal or the Hon ble High Courts per the several decisions cited before him, would not be proper considering that the law had cast a specific obligation on the payer of income and, further, consciously not provided for any time limit in its respect. He, accordingly, held as under:- After considering the facts, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Bench, at this stage, pointed out that the relevant provisions fall under Chapter XVII of the Act, titled Collection and Recovery of Tax . Further, the very fact that the Hon ble Courts had applied these decisions in the context of time limit for initiating proceedings u/ss. 201(1) and 201(1A) under the Act, itself implies the applicability of the principles involved. 4. We have heard the parties, and perused the material on record, giving our careful consideration to the matter. 4.1 We may, at the outset, clarify that the Revenue had also filed appeals for the relevant years against the impugned order (in ITA Nos. 121 to 124/Pat/2012), which stand decided by us vide order dated 24.04.2015 (copy on record). This, though admittedly not the proper course, so that cross appeals ought to have been heard together, we may emphatically clarify is due to the factum of these being cross appeals being not brought to the notice of the Bench during hearing. The tribunal decided the matter; the Revenue challenging the decision by the ld. CIT(A) on merits; thus: 6. On consideration of the rival submissions in the light of the material available on record, we find the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department) cannot be imported under the scheme of the Act, and is of no consequence; b) the admission of liability does not restore legality to the proceedings or confer jurisdiction, which has to be as per the law. It cannot, at any rate, put the assessee in a condition worse than he would be if he had chosen to contest the liability; c) for the purpose of sections 201(1) and 201(1A), it is the date of the initiation of the proceedings, or the exercise of the jurisdiction, that is relevant, and not of completion of the said proceedings, so that the decision in the case of Bharat Steel Tubes Ltd. vs. State of Haryana [1988] 70 STC 122 (SC), which is in respect of completion of assessment under the Punjab General Sales Tax Act, 1948/ Haryana General Sales Tax Act, 1973, which does not prescribe any time limitation for the purpose, would not apply; d) a reasonable time period, which therefore ought to operate, in-as-much as the liability cannot be allowed to hang on the head for all the time, is to be prescribed considering the provisions of the relevant Act, i. E., the nature of the statute, the rights and liabilities there-under and other relevant factors, as held by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights and liabilities there-under, and other relevant factors. The Legislature has however consciously omitted section 231, which specifically provided for a time period for the commencement of recovery proceedings, so that there is a conscious attempt on its part to remove any legal bar as to time, and which therefore has to be respected. The said removal, or the absence of the provision stipulating a time limit for the period of recovery, i. E., the commencement of recovery proceedings under the Act, is, thus, in agreement with the clear and settled principle of law enunciated by the Apex Court per its various decisions referred to in HMT Ltd. (supra), including and not limited to Hindustan Times Ltd. (supra). Even otherwise, the principle of casus omissus cannot be lightly inferred, as explained in, among others, Padmasundara Rao (Decd.) vs. State of Tamil Nadu [2002] 255 ITR 147 (SC). Continuing further, again, without doubt, the charge of tax and the crystallization of the tax liability in its respect is upon occurring of the taxable event, and has nothing to do with its subsequent assessment following the prescribed procedure, as explained by the Hon ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Constitution of India, can only be levied or recovered under the authority of law. The tax in the form of TDS, so collected, is that levied (by law) on the deductee. That is, collection of tax could only be of that levied, which, where of TDS, is of another, i. E., the deductee. Collection of tax can even otherwise be neither in vacuum nor independent or de hors that levied, i. E., is rendered without any legal basis in the absence of the latter. The concept of knowledge cannot be either a limiting or a facilitation factor, i. E., of any relevance. We, accordingly, observe no dichotomy between the two different decisions relied upon by the opposing sides, notwithstanding there being presented as so before us. The question, therefore, boils down to as to which of the two principles is validly applicable in the facts and circumstances of the case. 4.4 The levy of tax under the Act is u/s.4 thereof. The same requires determination of income, which is to be in terms of the relevant provisions of the law, and following the procedure of assessment laid down under Chapter XIV of the Act. The same, per section 139, requires the deductee to furnish the return of income, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax collection/recovery could only be of that levied/leviable. The principle stands also explained and is well settled per the decisions by the Apex Court, as in the case of Hindustan Coca Cola Beverage P. Ltd. vs. CIT [2007] 293 ITR 226 (SC). However, it is open for the deductor to exhibit that, notwithstanding the non-deduction of tax at source on the income chargeable to tax for the year, the same can yet not be recovered in view of the tax on the relevant income having been paid or otherwise recovered by the Revenue. That is, though the orders u/ss. 201(1) and 201(1A) would in such a case, i. E., initiation of proceedings in its respect within six years from the relevant assessment year, is valid, actual recovery shall abate on the satisfaction of the tax liability on the corresponding income. Decision 5. In sum, we find that there is no contradiction and, rather, scope for application of both the set of decisions relied upon by the opposing sides before us, i. E., depending on the facts of the case, proving, as it were, the dicta by the Apex Court in Bharat Steel Tubes Ltd. (supra) that it all depends on the facts of the case and, further, toward which therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2008, following a survey u/s.133A concluding on 07.02.2008, by extending opportunity to the assessee to explain its case qua non deduction of tax at source, which was in fact followed by similar opportunity on 22.02.2008, 27.02.2008, 03.03.2008 and 07.03.2008 (refer para 1 of the order u/s.201(1) and 201(1A) of the Act dated 31.07.2008 for all the years). These dates fall within a period of six years from the end of the relevant year for all the years under reference. Accordingly, none of the impugned initiations suffers from the legal infirmity of being barred by time. The assessee s case, accordingly, fails for all the years. On the merits of the demand raised, on which no arguments were made and, consequently, not urged or responded to by the other side as well, the matter stands squarely covered by the decision by the co-ordinate Bench in the assessee s case (to which both of us are incidentally a party), confirming the impugned order. It is, however, as afore-stated, open for the assessee to lead evidence before the Assessing Officer (A. O.) as to the satisfaction of the tax demand on the interest income in the hands of the deductee/s, to which extent therefore no recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X
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