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TMI Blog2022 (11) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicable retrospectively. As specifically stated that the said amendment will take effect from 1/10/2014. As observed hereinabove, in the present cases, limitations provided for passing order under section 201(1) of the Act for A.Y. 2011-12 had already been expired on 31/3/2014 i.e. prior to section 201(3) came to be amended by Finance Act No.2 of 2014. Similar view was taken by the Hon'ble High Court of Gujarat in the case of Tata Teleservices Vs. Union of India [ 2016 (2) TMI 414 - GUJARAT HIGH COURT ] and also in Oracle India Private Limited [ 2015 (11) TMI 408 - DELHI HIGH COURT ] against which SLP filed before the Hon'ble Supreme Court was dismissed [ 2016 (8) TMI 612 - SC ORDER ] Thus we have no hesitation to hold that the assessment order dated 30.03.2018 is barred by limitation. Appeal of assessee allowed . - ITA No. 319/DEL/2021 - - - Dated:- 15-11-2022 - Shri N.K. Billaiya, Accountant Member, And Shri Kul Bharat, Judicial Member For the Assessee : Shri Ravi Sharma, Adv For the Department : Shri Sanjai Kumar Yadav, Addl.CIT-DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- This appeal by the assessee is preferred against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id iu other parties. 8. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has grossly erred in upholding that the Ld. AO held the assessee as assessee in default and incorrectly charging interest u/s 20i(iA) of the Act. 9. Without prejudice to the above, the assessment made is highly excessive and contrary to facts, law and principles of natural justice and fair play. The above grounds are without prejudice to each other. That the Appellant reserves its right to add, alter, amend or withdraw any ground of appeal either before or at the time of hearing of this appeal. 3. Briefly stated, the facts of the case are that the assessee is engaged in the business of distribution of foot wear and apparels and sells its merchandise in India directly to independent retailers, often under distribution or franchise agreement. 4. As a consequence of the survey proceedings conducted u/s 133A of the Income-tax Act, 1961 [hereinafter referred to as 'The Act'] on the Ambience Group who are the owners and operators of malls where assessee s stores are situated. 5. It came to the notice of the Assessing Officer that the mall owners have collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant provisions of section 201 read with several amendments made therein and once again contended that the assessment order dated 30.03.2018 is barred by limitation in light of quarterly TDS returns filed in form 26Q. 10. Per contra, the ld. DR strongly supported the findings of the ld. CIT(A) and read the operative part. 11. We have given thoughtful consideration to the orders of the authorities below. The moot question which needs adjudication is whether amendment in section 201(3) by the Finance Act 2014 is not made expressly w.r.e. but as per plain language of amended section, it was to take effect from 01.10.2014 and if the answer to this question is YES, then whether the increased limitation period of 7 years u/s 201(3) as amended by the Finance (No. 2) Act, 2014 w.e.f 01.10.2014 shall not apply retrospectively to orders which had become time barred under old-time limit set by unamended section 201(3) of the Act and no order u/s 201(1) deeming deductor to be assessee in default could have been passed if limitation had already expired as on 01.10.2014. 12. In so far as quarterly TDS return in Form 26Q is concerned, there is no dispute. 26Q1 was filed on 19.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011. However, no time-limits have been prescribed for order under subsection (1) of section 201 where- (a) the deductor has deducted but not deposited the tax deducted at source, as this would be a case of defalcation of government dues; (b) the employer has failed to pay the tax wholly or partly, under sub-section (1A) of section 192, as the employee would not have paid tax on such perquisites; (c) the deductee is a non-resident as it may not be administratively possible to recover the tax from the nonresident. 16. It is proposed to make these amendments effective from 1st April, 2010. Accordingly it will apply to such orders passed on or after the 1st April, 20I0. From the aforesaid chronological events, it appears that section 201(3)(ii) of the Act came to be further amended by Finance Act of 2012, however, with retrospective effect from 1/4/2010 whereby in sub-section (3) in clause (ii), further words four years came to be substituted by words six years . Thus, period for passing order in respect of cases where statement referred to in section 200 of the Act were not filed, was extended from four years to six years. 17. It is also required to be noted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act to allow the deductor to file correction statements. Consequently, it is also proposed to amend provisions of section 200A of the Act for enabling processing of correction statement filed. The existing provisions of section 201(1) of the Act provide for passing of an order deeming a payer as assessee in default if he does not deduct or does not pay or after deduction fails to pay the whole or part of the tax as per the provisions of Chapter XVII-B of the Act. Section 201 (3) of the Act provides for time limit for passing of order under section 201(1) of the Act for deeming a payer as assessee in default for failure to deduct tax from payments made to a resident. Clause 201(3) of the Act provides that no order under section 201(1) of the Act shall be passed after expiry of two years from the end of the financial year in which TDS statement has been filed. Currently, the processing of TDS statement is done in the computerized environment and mainly focuses on the transactions reported in the TDS statement filed by the deductor. Therefore, there is no rationale for not treating the deductor as assessee in default in respect of the TDS default after two years only on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture wanted to make provisions applicable retrospectively, it has been so provided. At this stage, it is required to be noted that while making amendment in section 201(3) of the Act by Finance Act No.2 of 2014, does not so specifically provide that the said amendment shall be made applicable retrospectively. 22. On the other-hand, it is specifically stated that the said amendment will take effect from 1/10/2014. As observed hereinabove, in the present cases, limitations provided for passing order under section 201(1) of the Act for A.Y. 2011-12 had already been expired on 31/3/2014 i.e. prior to section 201(3) came to be amended by Finance Act No.2 of 2014. 23. Similar view was taken by the Hon'ble High Court of Gujarat in the case of Tata Teleservices Vs. Union of India 385 ITR 497 and also by the Hon'ble High Court of Delhi in Oracle India Private Limited Vs. Deputy CIT 376 ITR 411 against which SLP filed before the Hon'ble Supreme Court was dismissed in 41 Taxmann.com 311. 24. Considering the facts of the case in light of the discussion hereinabove, we have no hesitation to hold that the assessment order dated 30.03.2018 is barred by limitation. Since we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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