TMI Blog2024 (11) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... would definitely have provided such retrospective effect expressing in clear terms while making such amendment. In the instant case the time limit for passing order u/s 201(1) of the Act pertaining to financial year 2010-11 where a statement u/s 200 of the Act has been filed was two years from the end of the financial year in which such statement was filed. It is evident from the order of the AO that the tax statement in the relevant form i.e. Form 26Q for F.Y. 2010-11 was filed by the assessee on 13-05-2011. The time limit for passing an order u/s 201(1) of the Act was up to 31-03-2014.The assessment order was completed on 28-03-2018 by the AO beyond the prescribed time limit. The sub-section (3) of the Section 201 of the Act does not applicable in this case. We find that the assessment was made by the AO was time barred has no leg to stand and the Ld. CIT(A) has rightly allowed the appeal. The appeal of the revenue is liable to be dismissed. - Sh. M. Balaganesh, Accountant Member And Sh. Sudhir Kumar, Judicial Member For the Appellants : Sh. Pravin Rawal, CIT DR For the Respondent : Sh.Manuj Sabharwal Advocate, Sh.Druna Negi, Advocate And Sh. Devvat Tiwari Advocate ORDER PER SU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timated this default to the joint commissioner of Income Tax Range 76 New Delhi for initiating penalty proceedings u/s 271C of the Act. A notice u/s 201(1) /201(1A) of the Act along with questionnaire was issued on 26- 02-2018. The Ld AR of the assessee has attended the proceedings. According to AO the assessee has failed to deduct TDS on the expenses incurred during this year. The amount of TDS required to be deducted on the incurred expenses as per details as under; S No. Head of Expenses Amount of expenses Section TDS deductible but not deducted 1. Contractor subcontractor Rs. 7,72,43,393/- 194C 15,68,041/- 2. Professional Service Rs. 46,12,58,594/- 194J 4,75,09,635/- 3. Rent Rs. 64,03,371/- 194I 9,62,427/- Total Rs. 54,49,05,358/- 5,00,40,103/- 4. The assessing officer has completed the assessment u/s 201(1)/ (1A) of the Act, holding that the assessee company in default to deduct tax for amount of Rs 5,00,40,103/- which was required to be deducted under various TDS sections but was not deducted. 5. Aggrieved the order of the AO the assessee company has filed the appeal before the Ld CIT(A) who vide his order dated 07-12-2023 allowed the appeal. Aggrieved the order of the Ld CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an assessee in default for failure to deduct whole or any part of the tax from any person resident in India, at any time after the expiry of- (i) Two years from the end of the financial year in which the statement is filed in a case where the statement referred to in section 200 has been filed; (ii) Four years from the end of the financial year in which payment is made or credit is given, in any other case; Provided that such order for a financial year commencing on or before the 1st day of April, 2007 may be passed at any time on or before the 31st day of March, 2011. (4) The provisions of sub-clause (ii) of sub-section (3) of section 153 and of Explanation 1 to section 153 shall, so far as may, apply to the time limit prescribed in subsection (3). Section 201(3) of the Act was then amended by Finance Act, 2012 with retrospective effect from April 1, 2010 whereby the limitation was substituted from four years to six years for passing the order where withholding tax statement had not been filed and the limitation of two years continued in cases where the statement is filed. The relevant provisions of Section 201(3) of the Act post amendment by Finance Act, 2012 is reproduced be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct expressing in clear terms while making such amendment. In the case of Sodexo AVC India (P) Ltd. Vs Deputy Commissioner of Income Tax (TDS) 2(2) Mumbai [2018] 92 taxmann.com 260(Mumbai) the coordinate Bench held as under :- 6. We have heard the rival submissions and perused materials available on record in the light of the decisions cited. So far as fled statements of the issue is concerned, there is no dispute that in terms of Section 200(3), the assessee has field statements of TDS before the Department within the prescribed time. In fact, in the assessee has TDS before the Department within the prescribed time. In fact in the submissions made by the assessee as reproduced in Para 5.2 of the impugned order of the learned Commissioner (Appeals) the fact of filing of TDS statements by the assessee has been clearly brought out. Therefore, we have to proceed on the basis that in assessee s case, the statements of TDS have been filed. Keeping the aforesaid factual position in view it is necessary to examine the relevant statutory provisions. Section 201 which lays down the consequences of failure to deduct tax at source or having deducted not remitted to the Government account, in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein payments made or credit given was made applicable. The issue before us is, whether the un-amended sub-section (3) which existed before introduction of amended sub- section (3) by Finance Act, 2014, will apply to assessee's case or not. It is the case of the assessee that, since, clause (1) of sub-section (3) of section 201 is applicable to the assessee and the limitation period of two years has expired by the time the provision was amended by Finance Act, 2014, the extended period of limitation of seven years as per the amended provision will not apply. Whereas, it is the case of the Department that the amended sub-section (3) brought into the statute by Finance Act, 2014, will apply retrospectively, hence, the impugned order passed by the Assessing Officer within the period of seven years is valid. It is a fact on record that by the time the amended provisions of sub-section (3) was introduced by Finance Act, 2014, the limitation period of two years as per clause (1) of sub-section (3) of section 201 (the un-amended provision) has already expired. The learned Commissioner (Appeals) has applied the amended provision of subsection (3) of section 201 by referring to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is directly on the issue of retrospective application of the amended sub-section (3) of section 201, the Hon'ble Gujarat High Court, after extensively dealing on the issue of retrospective applicability of the provisions and applying the principles laid down by the Hon ble Supreme Court in a number of cases, held as under :- 15.00 Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, to the facts of the case on hand and more particularly 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)(1) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, is barred by limitation, hence, has to be declared as null and void. 12. Before parting, we must put it on record that since we have decided the appeal on the issue of limitatior we have consciously restrained ourselves from touching upon the merits of the issue regarding applicability c section 194C of the Act which is left open to be decided if it arises in case of the assessee in any other assessment year. 13. In the result, assessee's appeal is partly 11. In the instant case the time limit for passing order u/s 201(1) of the Act pertaining to financial year 2010-11 where a statement u/s 200 of the Act has been filed was two years from the end of the financial year in which such statement was filed. It is evident from the order of the AO that the tax statement in the relevant form i.e. Form 26Q for F.Y. 2010-11 was filed by the assessee on 13-05-2011. The time limit for passing an order u/s 201(1) of the Act was up to 31-03-2014.The assessment order was completed on 28-03-2018 by the AO beyond the prescribed time limit. The sub-section (3) of the Section 201 of the Act does not applicable in this case. 12. For the foregoing reasons we find that the assessment wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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