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TMI Blog2022 (8) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessee in default for failure to deduct the whole or any part of the tax from a person resident in India can be passed before expiry of two years from the end of financial year in which the payment is made. Co-ordinate Bench at Delhi in the case of HCL Technologies Ltd. [ 2020 (7) TMI 643 - ITAT DELHI] has also relied the Hon ble Gujarat High Court judgment[ 2016 (2) TMI 414 - GUJARAT HIGH COURT] . The distinction attempted to be brought by Ld. Sr. DR by submitting that under the un-amended sub section 3 of Section 201 there were two clauses and first clause provided two years limitation was in case where statement of TDS were filed and there was limitation of six years where no such statement is filed and has no foundation because in the present case admittedly the statement was filed by the assessee and the question was only with regard to the issue if TDS was required to be deducted in cases involving payment of LTC reimbursements to employees who had taken circuitous routes involving travel abroad to one or more domestic destinations. There is no doubt in the mind of Bench that the impugned order of assessment passed was without jurisdiction as the same was passed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to explain as to whether the element of reimbursement on circuitous journey was considered as a part of salary and due TDS u/s 192 of the Act was deducted thereon. It was admitted by the AGM that no tax u/s 192 of the Act was deducted on such reimbursement made under LFC/HTC Scheme. The bank vide letter 29/01/2018 filed chronological details of reimbursement made on account of LTC/LFC/HTC during the FY 2010-11. The bank treats HTC (Home Travel Concession) and LTC (Leave Travel Concession) alike and the term used is LFC (leave fare Concession ) It was also observed that some employees have also taken circuitous route visiting foreign places in the garb of HTC, which is usually meant for travelling to Horne Destination via shortest route. 2. 3 Accordingly, notice u/s 201(1)/(1A) of the Act was issued on 29/01/2018 and bank was asked to show cause as to why the deductor bank should not be held as an assesses in default within the meaning of Section 201 (1)/(1A) of the Act for non-deduction of tax on such reimbursement made to its employees. 3. After taking the reply of assessee, the Ld. AO denied the benefit of Section 10(5) observing that the bank was bound to deduct tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(3), the order should have been passed within the period of two year from the end of relevant financial year i.e. 2010-11 and hence the order passed by the A.O. is barred by limitation of time. On perusal of the provisions of section 201(3), I find that the section has been amended w.e.f 01.10.2014 and from this date, order u/s 201 can be passed at any time before the expiry of seven years also from the end of financial year in which payment is made or credit is given. Since the payment for reimbursement of expenditure liable for TDS was made in F.Y. 2010-11, the seven years period expire on 31.03.2018. Thus, the order passed by the AO dated 05.03.2018 is within prescribed time limit. On the basis of decisions of Hon'ble Supreme Court in the case of DCIT Vs Oracle India Pvt Ltd (2016) 72 taxmann.com 138 (SC) and Vodafone Cellular Limited Vs DCIT (2018) 91 taxmann.com 466 (Pune - Trib), the Ld. AR also argued that for the year under consideration the earlier provision will be applicable. However on going through these decisions, it is noticed that in the case of Oracle India Pvt Ltd (Supra), order u/s 201(1)/201 (1A) for A.Y. 2008-09 was passed prior to amendment u/s 201(3) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after prescribed period of limitation. It was submitted that the appellant was served notices u/s 201(1) in January, 2018 in connection with TDS proceedings pertaining to F.Y. 2010-11. It was submitted that Section 201(3) inserted vide Finance (No. 2) Act, 2009 with effect from 01.04.2010 provided limitation of 2 years from the end of Financial year in which TDS statement is filed and 4 years from the end of financial years where the statement had not been filed. It was submitted that assessee was regularly filing TDS statements and had filed TDS return for F.Y. 2010-11 by 15.05.2011 for the period for passing order u/s 201(3) for relevant F.Y. 2010-11 stands expired on 31.03.2014. It was submitted that this amendment with effect from 01.10.2014 is prospective in nature and reliance in this regard was placed on the judgment of Hon ble Gujarat High Court in Tata Teleservices vs. Union of India (2016) 66 Taxmann.com 157 (Gujarat) . He relied judgment of Co-ordinate Bench in HCL Technologies Ltd. vs. ACIT ITA No. 1723/Del./2017 order dated 15.07.2020 to contend that relying Hon ble Gujarat High Court judgment the Tribunal has held that with effect from 01.04.2010 the time limit pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 favour of the assessee and considering the fact that wherever legislature wanted to give retrospective effect so specifically provided while amending section 201(3) (ii) of the Act as was amended by Finance Act, 2012 with retrospective effect from 1/4/2010, it is to be held that section 201(3), as amended by Finance Act No.2 of 2014 shall not be applicable retrospectively and therefore, no order under section 201(i) of the Act can be passed for which limitation had already expired prior to amended section 201(3) as amended by Finance Act No.2 of 2014. Under the circumstances, the impugned notices / summonses cannot be sustained and the same deserve to be quashed and set aside and writ of proh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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