Case Law Details
M/s. Ushodaya Enterprises Private Ltd Vs Addl. CIT (TDS) (ITAT Hyderabad)
We have perused the order of the Tribunal and find that in Para 8 of the order, the Tribunal has considered the applicability of sub-section (3) of section 201(1) also to 201(1A) and has clearly held that sub section (3) refers only to an order u/s 201(1) and that the TDS cannot be recovered from the assessee. Obviously, sub-section (3) refers to time limit for deeming a person to be “an assessee in default” for failure to deduct the whole or any part of the tax from a resident in India. Thus, though there is no elaborate discussion about the same, the Tribunal has considered and given a finding on the same. The assessee’s contention that it had placed reliance on various decisions (which are also referred to in the MA) and that the Tribunal has omitted to consider the same appear to be correct because there is no reference or discussion about the same in the order. But does that make the order erroneous?. The learned Counsel for the assessee has relied upon the decision of the Hon’ble Gujarat High Court in the case of Subodh Chandra S Patel, reported in 138 Taxmann 185 (Gu.) High Court in which it was held that non-consideration of jurisdictional High Court or Apex Court would always constitute a mistake apparent from record and the Tribunal in exercise of powers u/s 254(2) can rectify it. The other decision relied upon by the learned Counsel for the assessee is the decision of the Coordinate Bench of the Tribunal at Ahmedabad in the case of Pyramid Plastics in M.A. No. 147/Ahd/2012, dated 5.10.2012 wherein it was held that not considering the case law cited by the appellant is a mistake apparent from record and had recalled its earlier order and re-fixed it for fresh hearing.
The learned DR, however, submitted that there was no mistake apparent from record which was rectifiable u/s 254(2) of the Act.
Having regard to the rival contentions and the material on record, respectfully following the above decisions, we agree that there is a mistake apparent from record and needs rectification by dealing with the case law relied upon by the assessee. Since considerable time has passed after hearing of the appeals, we are of the opinion that both the parties should be given sufficient opportunity of hearing. Therefore, we deem it fit and proper to recall the order of the Tribunal in ITA No. 546/Hyd/2017 dated 29.11.2017 for rehearing of the parties on the decisions relied upon by the learned Counsel for the assessee. The appeals are thus directed to be fixed for hearing in due course after notice to the parties.
FULL TEXT OF THE ITAT JUDGEMENT
Please become a Premium member. If you are already a Premium member, login here to access the full content.
