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TMI Blog2018 (2) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ER PER RAVISH SOOD, JUDICIAL MEMBER: The present appeal filed by the assessee is directed against the order passed by the CIT(A)-14, Mumbai, dated 17.06.2014, which in itself arises from the order passed by the Tax Recovery Officer u/ss. 201(1)/201(1A) of the Income tax Act, 1961 (for short Act ), dated 28.03.2011. The assessee assailing the order of the CIT(A) had raised before us the following grounds of appeal: 1. The appellant submits that the order under sections 201(1) and 201(1A) passed by the Assessing Officer beyond a period of one year from the end of the financial year in which proceedings under section 201(1) were initiated was barred by limitation. The Appellant submits that even if no period of limitation is prescribed, the statutory powers must be exercised within a reasonable time. 2. Without prejudice to what is stated above, the appellant submits that the order under sections 201(1) and 201(1A) passed by the Assessing Officer beyond a period of four years from the end of financial year was barred by time limitation. The appellant submits that even if no period of limitation is prescribed, the statutory powers must be exercised within a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the business of receiving and distributing local satellite channel programmes was subjected to a survey action under Sec.133A of the Act on 17.09.2003. During the survey proceedings the A.O observed that the assessee company had failed to deduct tax at source in respect of the following expenses: Sr. No. NAME OF THE COMPANY F.Y. FEED CHARGES PAY CHANNEL COST 1. M/s Hathway C.Net Pvt. Ltd. 2002-03 - 93,22,911/- The A.O in the backdrop of his aforesaid observations, holding a conviction that the assessee had failed to deduct tax at source in respect of the aforesaid expenses, therefore, issued a show cause notice to the assessee to explain as to why it may not be treated as an assessee in default u/ss. 201(1)/201(1A) for failing to deduct tax at source under Sec. 194C in respect of the aforesaid payments. The assessee in its reply raised multiple contentions, viz. (i) that as the agreement entered into by the assessee with the distributors was a distribution agreement and not a broadc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee was liable to deduct tax at source under Sec. 194C of the Act. However, the CIT(A) taking cognizance of the judgment of the Hon ble Supreme Court in the case of Hindustan Coca Cola Beverages Limited (supra) , observed that to the extent the aforesaid payees/deductees had paid the taxes on the amount under consideration, the same would not be recoverable from the assessee. The CIT(A) however observed that the assessee would continue to be liable for payment of interest under Sec. 201(1A) for the period commencing from the date on which such tax was deducted to the date on which the same was paid. That in the backdrop of the aforesaid observations the CIT(A) directed the A.O to recompute the liability of the assessee under Sec. 201(1)/201(1A) of the Act. 5. The assessee being aggrieved with the order of the CIT(A) had carried the matter in appeal before us. That at the very outset we may herein observe that the assessee while filing the appeal had moved an application seeking admission of the grounds of appeal nos. 1 and 2 as additional grounds of appeal under Rule 11 of the Appellate Tribunal Rules, 1993. We have deliberated on the additional grounds of appeal raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff. It is stated by the deponent that in the backdrop of the facts leading to the delay in filing of the present appeal, the same in all fairness may be condoned, failing which a meritorious matter would be dismissed on account of technicalities. 7. That during the course of hearing of the aforesaid application seeking condonation of delay, it was submitted by the ld. Authorized Representative (for short A.R ) for the assessee that the delay involved in filing of the present appeal had crept in absolutely on account of a bonafide mistake on the part of the Mr. Pravin Kadam, Deputy Manager (taxation) of the holding company, viz. Hathway Cable and Datacom Ltd. That in support of the aforesaid facts the affidavit of Shri Pravin Kadam, Deputy Manager (taxation) of the holding company, dated 24.06.2016 was also placed on record by the assessee. The ld. A.R in support of his contention that as the delay in filing of the present appeal was backed by a bonafide mistake on the part of the assessee and not on account of any lapses and laches, therefore, the delay involved did merit to be condoned, relied on the judgment of the Hon ble Supreme Court in the case of Ramnath Sao Vs. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee for condonation of delay did not merit acceptance, therefore, the appeal of the assessee was liable to be dismissed on the said count itself. The ld. A.R in his rejoinder submitted that the material fact which would prove the bonafides of the assessee as regards the delay involved in filing of the present appeal, could safely be gathered from the fact that on the same issue involved in the present appeal, the appeals of the assessee for the immediately two preceding years, viz. A.Y(s) 2001-02 and 2002-03 were already pending disposal before the Income Tax Appellate Tribunal. It was submitted by the ld. A.R that the assessee would not have gained in delaying in filing of the present appeal, which had occurred for reasons beyond its control. 8. We have heard the authorized representatives for both the parties and perused the material available on record in context of the delay involved in filing of the present appeal before us. We find substantial force in the contention of the ld. A.R that the delay of 658 days involved in filing of the present appeal had occurred on account of an inadvertent mistake on the part of the Shri Pravin Kadam, Deputy Manager (Taxation) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile raising the said contention had lost sight of the reason leading to the delay filing of the present appeal. The delay as explained by the assessee had admittedly occasioned on account of failure on the part of an individual employee to deliver the order passed by the CIT(A) to the Chartered Accountant. We are of the considered view that as the assessee had came forth with a bonafide explanation as regards the delay in filing of the appeal before us, therefore, the same merits acceptance on our part. We may herein observe that the ld. D.R had failed to place on record any material which could persuade us to conclude that the explanation of the assessee as regards the delay in filing of the appeal was not to be accepted. We thus keeping in view the aforesaid facts condone the delay of 658 days involved in filing of the present appeal. 9. We shall now advert to the additional grounds of appeal raised by the assessee before us. The ld. Authorized Representative (for short A.R ) for the assessee had at the very outset submitted that as the order passed by the A.O under Sec. 201(1) and Sec. 201(1A) was beyond a period of one year from the end of the financial year in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid contention that the order passed by the A.O u/ss. 201(1)/201(1A) was barred by limitation, submitted that a similar view had also been taken by a coordinate bench of the Tribunal in the case of the holding company of the assessee, viz. ITAT, H , Mumbai in the case of Hathway Cable and Datacom Ltd. Vs. TRO (TDS)-1 in ITA No. 1810/Mum/2014, dated 01.06.2016 (copy placed on record), as well as the order passed by the ITAT H , Mumbai in the case of the sister concern of the assessee, viz. Hathway Nasik Cable Network Pvt. Ltd. Vs. TRO (TDS), in ITA No. 5190/Mum/2014, dated 15.02.2017 (copy placed on record). The ld. A.R in the backdrop of his aforesaid submissions averred that as the order passed by the A.O under Sec. 201(1)/201(1A) was barred by limitation, therefore, the order passed by the CIT(A) upholding the order of the A.O u/ss. 201(1)/201(1A) was liable to be vacated. Per contra, the ld. D.R submitted that as no limitation for passing of an order U/ss. 201(1)/201(1A) was provided in the Act, therefore, the A.O had rightly held the assessee as being in default under the said statutory provision. The ld. D.R further relied on the orders passed by the lower authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es there under and other relevant factors. Relying upon this decision, it is submitted by learned Counsel for the assessee that since Section 201 of the Act does not prescribe any period of limitation for initiating or for completing proceedings in declaring the assessee as an assessee in default, exercise of jurisdiction should commence insofar as the statutory authority is concerned within a reasonable period of time. We are unable to agree with learned Counsel for the Revenue inasmuch as the decision relied upon by him deals with reasonable time for completing the assessment or for completing the task on hand. In Bharat Steel Tubes Ltd. (1988) 70 STC 122 (SC) the question that arose before the Court (and which has been stated on page 130 of the report) is whether an order of assessment under Section 11(3) of the Punjab General Sales Tax Act, 1948 or Section 28(3) of the Haryana General Sales Tax Act, 1973 could now be completed or it would be barred by limitation. In that case, the assessment proceedings had been unduly delayed and the Supreme Court came to the conclusion that for completing the assessment proceedings there is no period of limitation prescribed and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a time limit for completing the assessment, then the time limit for initiating the proceedings must be the same, if not less. Nevertheless, the Tribunal has given a greater period for commencement or initiation of proceedings. 32 Mr.Suresh Kumar submitted before us that the Delhi High Court judgment does not take note of the principle that when there is no limitation prescribed by the statute, the Court cannot read into the provision any time limit or restriction. In that regard he relied upon the judgment of the Honourable Supreme Court in the case of Ajaib Singh v/s Sirhind Cooperative Marketing Cum Processing Service Society Limited and another reported in (1999) 6 SCC 82 . The issue before the Honourable Supreme Court in that case was whether there is any period of limitation prescribed for initiation of proceedings under Section 33C(2) of the Industrial Disputes Act, 1947. In that regard the Honourable Supreme Court noted the factual position, namely, that services of workman were terminated on 16.07.1974. He had issued the notice of demand only on 18.12.1981. However, it was not disputed that no plea regarding delay was raised by the Management before the Lab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult in respect of such tax if such resident ( i) has furnished his return of income under section 139; ( ii) has taken into account such sum for computing income in such return of income; and ( iii) has paid the tax due on the income declared by him in such return of income, and the person furnishes a certificate to this effect from an accountant in such form as may be prescribed:] [ Provided further 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 subsection (1), if any such person, principal officer or company as is referred to in that subsection does not deduct the whole or any part of the tax 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, ( i) at one per cent. for every month or part of a month on the amount of such tax from the date on which such tax was deductible to the date on which such tax is deducted; and ( ii) at one and one half per cent. for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee in Default yet the Revenue will have to exercise the powers in that regard within a reasonable time. In such circumstances we are of the view that the Tribunal's order in this case does not suffer from any error of law apparent on the face of record or perversity warranting our interference in appellate jurisdiction. 36 We are also shown the judgment of the Calcutta High Court in the case of Bhura Exports Ltd. v/s Income Tax Officer (TDS), Ward 57(2) in G.A. No.1319 and ITAT No.118 and IT Appeal No.116/2011 and IT 1163/2011 decided on 30.08.2011. With respect and for the reasons indicated by us above we cannot agree with the view taken by the Division Bench of the Calcutta High Court. That decision overlooks the fundamental principles noted above. They need not be reiterated here. We further find that involving the identical facts the coordinate bench of the Tribunal in the assesses own case for the A.Ys. 2001-02 and 2002-03, marked as ITA No. 6996/Mum/2014 and ITA No. 4261/Mum/2014, vide its order dated 07.09.2016, taking cognizance of the fact that though the notice u/ss. 201(1)/201(1A) was issued by the A.O on 23.09.2003, however, as the respective orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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