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TMI Blog2022 (3) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... er For the Appellant : Shri Nitesh Joshi. AR For the Respondent : Shri Jasjeet Singh, CIT-DR ORDER PER PAVAN KUMAR GADALE - JM: The assessee has filed the appeal against the order of the CIT(TDS)-1, Mumbai, passed u/s 263 of the Income Tax Act, 1961 (for short the Act ). The assessee has raised the following grounds of appeal: A. Validity of Order under section 263 of the Act: 1. Based on the facts and circumstances of the case and in law, the Ld. CIT erred in holding that the order dated 23 March 2018 passed by the TDS Officer ( TO ) under section 201(1)/201(1A) of the Act was erroneous and prejudicial to the interests of revenue and in revising the same. 2. Based on the facts and circumstances of the case and in law, the Ld. CIT has erred in passing the order dated 19 March 2020 under section 263 of the Act. 3. Based on the facts and circumstances of the case and in law, the Appellant submits that the order under section 201(1)/ 201(1A) of the Act passed by the TO was neither erroneous nor prejudicial to the interest of revenue and hence, revision of the same by the Pr. CIT is erroneous and bad in law. 4. Based on the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 194I. In addition to these payments, it has been observed that the Group i.e. mall owners have recovered/ collected other expenses being of the nature of A/c Maintenance, House Keeping, Security etc. from the occupants in the form of CAM (Common Area Maintenance) Charges. It is seen that the deductees/ tenants have been deducting TDS at 2% by considering the same to be covered under the provisions of section 194C. Since this collections/ payments is directly relatable to and being part and parcel of the rental activity should have been covered by the provisions of Section 194I calling for TDS at 10% as against deduction of TDS at 2% being made by the deductees/ tenants, thereby prima facie being assessee in default. 3. The following deductees/ tenants have made payments for occupying the units/ shops or utilizing space at R City Mall, Ghatkopar of R Mall Developers Pvt. Lid. having PAN: AADCR3444F TAN: MUMR20468A. S. No Name of the Tenant PAN TAN Total amount paid TAN AO 1 Infiniti Retail Ltd. (Croma) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act is erroneous and prejudicial to the interest of the revenue and was set-aside and directed the A.O. to pass fresh order under section 201(1)and201(1A) of the Act and passed the order under section 263 of the Act dated 19.03.2020. Aggrieved by the revision order, the asssessee has filed the appeal with the Honble Tribunal. 6. At the time of hearing, the Ld.AR submitted that the CIT-(TDS) has erred in set aside the order passed under section 201(1) and 201(1A) of the Act which is barred by limitation. Against the order under section 201(1) and 201(1A) of the Act dated 28.03.2018, the asssessee has filed an appeal before the CIT(A). And the CIT(A) has allowed the assessee s appeal on the additional ground of appeal relating to validity of the order. The Ld.AR substantiated the submissions with the financial statements, order of the CIT(A) and Memorandum of Finance Act, 2014. Since, the original order under section 201(1) and 201(1A) was quashed by the CIT(A), therefore, the revision of the same order by the CIT-TDS is bad-in-law and prayed for allowing the appeal. 7. Contra, Ld.DR supported the order of the CIT- (TDS) and submitted that the Revenue has not filed the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in the case of Union of India Anr. VS. British India Corporation Ltd. Ors. (2004) reported in 288 ITR 481. Further, the Id. Special Bench of Appellate Tribunal, Mumbai in Mahindra Mahindra vs. DC/T reported in 30 SOT 374, has taken a similar view. 2.4 The matter was remanded to the Assessing Officer, DCIT(TDS)-1(2), Mumbai, vide this office letter dated 24.06.2019 for verification of the dates of filing of the TDS statements for the financial year under consideration as claimed by the appellant and also for comments thereon. The Remand report was received from the Additional CIT(TDS)-Range 1(2) vide letter no. Add.CIT (TDS)- 1(2/CIT(A)/Remand/infinity/2019-20 dated 12.02.2020 forwarding the report dated 10.02.2020 of the TDS officer Therein, the particulars of filing of the TDS statements as per TRACES were confirmed as under: Quarter Token No. Date of filing Q1 03610100208531 14.07.2010 Q2 021961000035730 15.10.2010 Q3 023610100295736 13.01.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efault for failure to deduct the whole or any part of the tax from a person resident in India, at any time after the expiry of - 1. Two years from the end of the financial year in which the statement is filed incase where the statement referred to in section 200 has been filed. 2. Six years from the end of the financial year in which payment is made or credit is given, in any other case 3.3 As to the question regarding the date of applicability of the extended limitation period the Hon'ble Gujarat High Court in the case of Tata Teleservices vs. Union of India [2016]reported in 66 taxmann.com 157, has held as under (emphasis supplied): Considering the fact that while amending section 201 by Finance Act, 2014, it has been specifically mentioned that the same shall be applicable w.e.f. 1/10/2014 and even considering the fact that proceedings for F.Y. 2007-08 and 2008-09 had become time barred and/or for the aforesaid financial years, limitation under section 201(3)(i) of the Act had already expired on 31/3/2011 and 31/3/2012, respectively, much prior to the amendment in section 201 as amended by Finance Act, 2014 and therefore, as such a right has been accrued in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (3) of section 201 (the un-amended provision) has already expired. The learned Commissioner (Appeals) has applied the amended provision of sub-section (3) of section 201 by referring to the objects for making such amendment and on the reasoning that the said provision being a machinery provision will apply retrospectively. However, on a careful perusal of the objects for introduction of the amended provision of ITA No.619 620/Mum/2019 Assessment Year 2 010-11 2011-2012 sub-section (3), we do not find any material to hold that the legislature intended to bring such amendment with retrospective effect. If the legislature intended to apply the amended provision of sub-section (3) retrospectively it would definitely have provided such retrospective effect expressing in clear terms while making such amendment. This view gets support from the fact that while amending sub-section (3) of section 201 by Finance Act, 2012, by extending the period of limitation under sub-clause (ii) to six years, the legislature has given it retrospective effect from 1st April 2010. 11 Sodexo SVC India Pvt. Ltd. Since, no such retrospective effect was given by the legislature while amending sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendment has actually come into effect from 01.10.2014 as per the finance(No.2) Act, 2014. 4.0 Applying the decisions of the Hon 'ble Gujarat High Court (supra) and that of the ld. jurisdictional Tribunal (supra) to the appeal under consideration, it is noted that the matter relates to the financial year 2010-2011. It is also not disputed that the TDS statement for last quarter was filed on 10.05.2011. Given the fact to which the aforesaid ratio is applied leads to the conclusion that the order under section 201(1) of the Act ought to have been passed latest by 31.03.2014 i.e., within two years from the end of the financial year in which the statement was filed. On the other hand, the impugned order has been passed on 23.03.2018by which time, the limitation period as per the pre-amended provisions had already expired. As far as the argument of the TDS officer mentioned in his remand report is concerned, the same has been explicitly disapproved by the Id. Appellate Tribunal, Mumbai, as aforesaid Before parting, it is to be mentioned that the amendment made by the Finance Act,2019, incorporating the aspect of the date of filing correction statements and extending the period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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