ACIT v. Catholic Relief Services (ITAT DELHI)
Withholding tax proceedings under Section 201 of the Income-tax Act, 1961 were barred by limitation, since it has been initiated beyond a reasonable period of four years. Further the Tribunal held that in the absence of period of limitation under Section 201 of the Act prior to an amendment2, a reasonable time period was to be read into it, which was within 4 years from the end of the relevant Financial Year.
INCOME TAX APPELLATE TRIBUNAL, DELHI
ITA No. 2742 to 2744/Del/2011
Assessment Years:- 2003- 04 to 2005- 06
Assistant Commissioner of Income-tax
V/s
M/s. Catholic Relief Services
Date of pronouncement 13-01 -2012
O R D E R.
A. N. PAHUJA : These three appeals filed on 27th May, 2011 by the Revenue against a common order dated 30th March, 2011 for the assessment years 2003-04 to 2005-06 of the ld. CIT (Appeals)–XXX, New Delhi, raise the following similar grounds :-
” 1. On the facts and in the circumstances of the case as well as in law, the Ld. CIT(A) has erred in agreeing with the submission of the assessee that the revenue has not filed SLP on the issue of limitation and charging of tax and interest u/s 201(1)/201(lA) against the order of Delhi High Court in the case of NHK Japan Broadcasting Corporation in ITA No.6-03/2007 for F.Y. 1990-91 dated 23.04.2008 and therefore the order of High Court has become final. This observation is wrong, incorrect and contrary to the fact available on record as the revenue had not accepted the order of High Court in the case of NHK Japan Broadcasting Corporation and filed SLP against it which is still to be decided by the Apex Court (Ref:- Civil Appeal No-751 of 201 (arising out of SLP (C) no. 1455 of 2009 ) in the case of CIT vs. M/s. British Airways with Connected Civil Appeal No.754, 758, 759, and 764/2010 of NHK Japan Broadcasting Corporation arising out of SLP (C) 4774/2009, 8 146/2009, 8661/2009 and 6389/2009 respectively where apex court has kept open the issue on limitation vide its order dated 20.01.2010).
2 On the facts and in the circumstances of the case as well as in law, the Ld. CIT(A) has erred in holding that the Proviso to section 201 (3) in which the limitation is given upto 31.03.2011 is not applicable in this case. The Ld. CIT(A) has wrongly interpreted section 201 (3) wherein it is clearly provided that the order for a F. Y. 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 .
3. On the facts and in the circumstances of the case as well as in law, the Ld. CIT (A) has erroneously reached the conclusion that the since the order of Hon’ble Delhi High Court in the case of CIT vs. Hutchison Essar Telecom Ltd. (2010) 323 ITR 230 (DEL) was passed on 15.04.2010, after the insertion of section 201 (3) by finance act, 2009 the period of limitation is 4 years from the end of the relevant F. Y. The Ld. CIT(A) failed to note that the said order of Hon’ble High Court of Delhi did not take into cognizance the provision of newly inserted section 201(3) and relied totally on the decision of NHK Japan Broadcasting Corporation which was rendered before finance act, 2009. Further the revenue has not accepted the aforesaid order of High Court in the case of Hutchison Essar Telecom Ltd. And the proposal for filing SLP has been sent to DIT (L&R) in order to maintain the consistency on this issue.
4. The cancellation of the order by CIT(A) passed u/s 201(1)/201(1A) is bad in law therefore, the Hon’ble ITAT be requested to set aside the same and restore back the order of the AO.
5. The appellant craves leave to add, alter or amend any of the Grounds of appeal at the time of hearing. ”
2. Facts, in brief, as per relevant orders are that in consequence of a search conducted on 11/09/2007 in the premises of the assessee, a U.S. based NGO, established in 1943 and engaged in aid and relief work in India for a number of years, it transpired that the assessee did not deduct tax at source on salary and perquisites of its following expatriate employees :-
