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ITO (TDS)-2(4), Mumbai. Vs. National Health & Education Society (P.D.Hinduja Hospital & Medical Research Centre) Veer Savarkar Marg, Mahim, Mumbai-400016
August, 21st 2015
                    ,"" 
 INCOME TAX APPELLATE TRIBUNAL, MUMBAI- `F' BENCH.
                . ,    , 
Before S/Sh.D.Manmohan, Vice-President& Rajendra, Accountant Member
/.ITA Nos. 4878/& 4879 Mum/2013,/Assessment Year-2004-05
    ITO (TDS)-2(4),                  National Health & Education Society
    Mumbai.                     Vs. (P.D.Hinduja Hospital & Medical
                                     Research Centre) Veer Savarkar
                                     Marg, Mahim, Mumbai-400016
                                     PAN: AAATN0093Q
/.ITA Nos.4971& 4972/Mum/2013,/Assessment Year-2005-06
    ITO (TDS)-2(4),                  National Health & Education Society
    Mumbai.                     Vs. (P.D.Hinduja Hospital & Medical
                                     Research Centre) Veer Savarkar
                                     Marg, Mahim, Mumbai-400016
                              ./.C.O.No.191 & 192/Mum/2014
                       (Arising out of ITA No.4878 & 4971/M/13),../A.Y.2004-05
                              ./.C.O.No. 211 &212/Mum/2014
                       (Arising out of ITA No.4879&4972/M/13),../A.Y.2005-06
      National Health & Education Society         ITO (TDS)-2(4),
      (P.D.Hinduja Hospital & Medical Vs. Mumbai.
      Research Centre) Veer Savarkar Marg,
      Mahim, Mumbai-400016
                  ( / Appellant)                      (  / Respondent)
               / Assessee by             : Shri S.C.Tiwari
                   /Revenue by : Shri Mohammed Rizwan
              / Date of Hearing                     : 14/08/2015
              / Date of Pronouncement : 19/08/2015
             , 1961   254(1)     
           Order u/s.254 (1) of the Income-tax Act 1961(Act)
Per Rajendra,AM        :

Challenging the order dt.24th March 2011 for AY 2004-05 and AY 2005-06 of the CIT(A)-
14, the Assessing Officer (AO) has raised various grounds of appeal with regard to the orders
passed by the AO u/s. 201(1) and 201(1A) of the Act. The assessee has filed cross objection
for the year under consideration
ITA 4878/M/2013 for A Y 2004-05 u/s 201 (1) By Revenue
   a) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in quashing the
      order passed by the AO u/s. 201(1)/201(1A) by relying on the CBDT Circular No. 5 of 2010
      dated 3rd June, 2010 stating that the TDS proceedings are not validly pending and thereby
      treating the order u/s. 201(1)/201(1A) as time barred on the grounds that as per clause (i) of
      section 201(3), the limitation for passing of the order u/s. 201(1) would be two years from the
      end of the financial year 2004-05 i.e. 31.03.2007 and as per clause (ii) of section 201(3) , the
      time period of six years from the end of the financial year 2003-04 shall expire on
      31.3.2010. Since the order is passed on 24.03.2011, the order passed by the AO is held by the
      CIT (A) to be beyond limitation period without appreciating the fact that as per the proviso to
      section 201(3), the order u/s. 201(1)/201 (1A) for a financial year commencing on or before
      the 151 day of April 2007 may be passed at any time on or before the 31st day of March
      2011.The CBDT Circular NO.5 referred by the Ld. CIT (A) is only clarificatory and cannot
                                                                      ITA-4878-79 & ors, Natl. Health Edu. Soc.



      over ride this statute.
   b) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) had erred in
      holding that the order passed by the A.O. u/s. 201(1) dated 24.03.2011 is beyond limitation
      period as per provision of section 201 (3) of the I.T. Act and proceeded to annul the impugned
      order when the Ld. CIT(A) was aware of the fact that a survey action u/s. 133A of the I.T. Act
      in the case of the assessee had been conducted on 04.10.2010 and order u/s 201 (1) was
      passed on 24.03.2011 which is well within the time limit since section 201 (3) of the I.T. Act
      clearly provides that such order for a financial year commencing on or before the 15th day of
      April, 2007, may be passed at any time on or before the 3151 day of March. 2011 and hence,
      order passed u/s. 201 (1) dated 24.03.2011 is valid one
   c) On the facts and circumstances of the case and in law, the Ld. CIT(A) had erred in annulling
      the order passed by the A.O. u/s. 201 (1 )/201 (1A) by observing that the impugned order is
      statutorily beyond the period of limitation without appreciating the fact that the proceedings
      under the said section pursuant to survey stand valid for the reason that the assessee had filed
      incomplete TDS statements u/s. 200 as mandated under the Income-tax Act, 1961 which fact
      was unearthed and came to light during the survey proceedings of the department.
   d) On the facts and circumstances of the case and in law, the Ld. CIT (A) had erred in annulling
      the order passed by the A.O. u/s.201(1)/201(1A) without appreciating the fact that as per
      circular NO.5 of 2010 issued by CBDT wherein it was clarified that the A.O. can complete
      TDS proceedings for a financial beginning from 01.04.2007 and earlier year's by 31.03.2011.
      In other words by virtue of assessees filling incomplete TDS statements the survey and the
      proceedings u/s. 201(1 )/201(1A) are validly pending before the Income-tax Authorities.
   e) On the facts and circumstances of the case and in law , the Ld CIT (A) has erred in
      annulling the order passed by the A.O. by treating the same as time barred and did not
      adjudicate the other issues on which A.O.'s order I s based for the reason that very basis
      of A.O. `s Order is without any validity, which calls for restoration.
   f) On the facts and the circumstancesof the case and in law, the appellant prays that the order
      of the Ld. CIT (A) on the above ground be set aside and that of Assessing officer
      determining tax default of Rs 4,92,61,089/- be restored.
ITA No 4971/M/2013 for AY 2004-05 U/s 201(1A) by revenue
   1. "The Ld. CIT (A) erred in quashing the order u/s 201(1A) whereby interest was charged on
      the short deduction determined u/s 201(1), by observing that the order u/s 201(1) had been
      annulled and also erred in not appreciating the facts that the order of the Ld. CIT (A)
      (annulling the short deduction u/s 201(1) had not been accepted by the department and
      appeal to ITAT had been filed".
   2. The appellant craves leave to amend or alter any ground or add a new ground which may be
      necessary at the time of the hearing of the case or thereafter"
   3. The order of the Ld. CIT (A) being erroneous be set aside and the A.O.'s order be restored".
CO No 211/M/2014 in Appeal No 4878/M/2013 A Y 2004-05 By Assessee
   1. The Learned CIT (A) has rightly held that the order u/s 201/201(1A) made by ITO (TDS )
      in the case of respondent on 24th march 2011 in relation to assessment year 2004-05 is
      barred by limitation.
   2. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of
      the case of the respondent and in law the respondent should not be deemed to be an
      assessee in default as held by ITO (TDS) in respect of the payments made to hospital based
      consultants.
   3. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of
      the case of the respondent and in law the Respondent should not be deemed to be an
      assessee in default as held by ITO (TDS) in respect of the payments made to Hinduja
      Foundation.
   4. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of
      the case of the respondent and in law the Respondent should not be deemed to be an
      assessee in default as held by ITO (TDS) in respect of the payments of Drug handling
      Charges.


                                                 2
                                                                      ITA-4878-79 & ors, Natl. Health Edu. Soc.



CO No 191/M/2014 in Appeal No 4971/M/2013 A Y 2004-05 By Assessee
   1. The Learned CIT (A) has rightly held that the order u/s 201(1A) made by ITO in the case
      of the respondent on 228th march 2011 in relation to A Y 2004-05 is barred by limitation.
   2. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the
      case of the respondent and in law the Respondent is not liable to any interest u/s 201(1A) of
      the act.
ITA 4879/Mum/2013for AY 2005-06 by Revenue u/s 201(1) a) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in quashing the order passed by the AO u/s. 201(1)/201(1A) by relying on the CBDT Circular No. 5 of 2010 dated 3rd June, 2010 stating that the TDS proceedings are not validly pending and thereby treating the order u/s. 201(1)/201(1A) as time barred on the grounds that as per clause (i) of section 201(3), the limitation for passing of the order u/s. 201(1) would be two years from the end of the financial year 2005-06 i.e. 31.03.2008. Since the order is passed on 24.03.2011, the order passed by the AO is held by the CIT (A) to be beyond limitation period without appreciating the fact that as per the proviso to section 201(3), the order u/s. 201(1)/201 (1A) for a financial year commencing on or before the 151 day of April 2007 may be passed at any time on or before the 31st day of March 2011.The CBDT Circular NO.5 referred by the Ld. CIT (A) is only clarificatory and cannot over ride this statute. b) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) had erred in holding that the order passed by the A.O. u/s. 201(1) dated 24.03.2011 is beyond limitation period as per provision of section 201 (3) of the I.T. Act and proceeded to annul the impugned order when the Ld. CIT(A) was aware of the fact that a survey action u/s. 133A of the I.T. Act in the case of the assessee had been conducted on 04.10.2010 and order u/s 201 (1) was passed on 24.03.2011 which is well within the time limit since section 201 (3) of the I.T. Act clearly provides that such order for a financial year commencing on or before the 15t day of April, 2007, may be passed at any time on or before the 3151 day of March. 2011 and hence, order passed u/s. 201 (1) dated 24.03.2011 is valid one c) On the facts and circumstances of the case and in law, the Ld. CIT(A) had erred in annulling the order passed by the A.O. u/s. 201 (1 )/201 (1A) by observing that the impugned order is statutorily beyond the period of limitation without appreciating the fact that the proceedings under the said section pursuant to survey stand valid for the reason that the assessee had filed incomplete TDS statements u/s. 200 as mandated under the Income-tax Act, 1961 which fact was unearthed and came to light during the survey proceedings of the department. d) On the facts and circumstances of the case and in law, the Ld. CIT (A) had erred in annulling the order passed by the A.O. u/s.201(1 )/201(1A) without appreciating the fact that as per circular NO.5 of 2010 issued by CBDT wherein it was clarified that the A.O. can complete TDS proceedings for a financial beginning from 01.04.2007 and earlier year's by 31.03.2011. In other words by virtue of assessees filling incomplete TDS statements the survey and the proceedings u/s. 201(1 )/201(1A) are validly pending before the Income-tax Authorities. e) On the facts and circumstances of the case and in law , the Ld. CIT (A) has erred in not considering the true facts unearthed during survey proceedings u/s 133A dated 4. 10.2010 Withrespect to not to treat the hospital based consultants Dr Phulrenu H Chauhan as employee of the hospital and remuneration paid to him is not in the nature of salary and provision of section 192 of the I.T. Act is not applicable in that case and also in the direction of the LD CIT (A) to the assessee too furnish copies of appointment letter in the case of the said person for verification by Ao is unjustified since , the same has already been ascertained during the course of survey proceedings and during the proceedings u/s 201(1) of the I.T. Act 1961 from appointment letter field by the assessee, it can be easily inferred that the remuneration paid to the said person is salary subjected to TDS u/s 192 as against 194J of the acat. f) On the facts and in the circumstances of the case and in law , the LD CIT (A has erred in deleting the total tax demand of Rs 2,71,928/- raised on account of payments made to Hinduja Foundation and non-deduction of tax on payment made on account of drug handling charges without appreciating the fact of the case came to light during survey 3 ITA-4878-79 & ors, Natl. Health Edu. Soc. proceedings on 4.10.2010 since taking in to account the same ,an order u/s 20191) is passed and TDS default was worked out and determined in terms of order dated 23.04.2011 g) On the facts and in the circumstances of the case and in law , the LD. CIT (A) has erred in holding that the assessee's contention as correct in respect of Drug handling charges by applying the provision of section 194C instead of section 194H ,as concluded by the AO in the course of proceedings u/s 20191)/201(1A) of the Income tax Act 1961, without appreciating the facts of the case came to light during survey proceedings on 4.10.2010 by taking in to account the same, an order u/s 201(1) was passed and TDS default was worked out and determine din terms of order dated 24.3.2011 ITA No 4972/M/2013 for AY 2004-05 U/s 201(1A) by revenue 1. "The Ld. CIT (A) erred in quashing the order u/s 201(1A) whereby interest was charged on the short deduction determined u/s 201(1), by observing that the order u/s 201(1) had been annulled and also erred in not appreciating the facts that the order of the Ld. CIT (A) (annulling the short deduction u/s 201(1) had not been accepted by the department and appeal to ITAT had been filed". 2. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary at the time of the hearing of the case or thereafter" 3. The order of the Ld. CIT (A) being erroneous be set aside and the A.O.'s order be restored". CO No 212/M/2014 in Appeal No 4879/M/2013 A Y 2005-06 By Assessee 1. The Learned CIT (A) has rightly held that the order u/s 201/201(1A) made by ITO (TDS ) in the case of respondent on 24th march 2011 in relation to assessment year 2005-06 is barred by limitation. 2. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the case of the respondent and in law the respondent should not be deemed to be an assessee in default as held by ITO (TDS) in respect of the payments made to hospital based consultants. 3. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the case of the respondent and in law the Respondent should not be deemed to be an assessee in default as held by ITO (TDS) in respect of the payments made to Hinduja Foundation. 4. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the case of the respondent and in law the Respondent should not be deemed to be an assessee in default as held by ITO (TDS) in respect of the payments of Drug handling Charges. CO No 192/M/2014 in Appeal No 4972/M/2013 A Y 2005-06 by Assessee 1. The Learned CIT (A) has rightly held that the order u/s 201(1A) made by ITO in the case of the respondent on 228th march 2011 in relation to A Y 2005-06 is barred by limitation. 2. The Learned CIT (A) has erred in not holding that on the facts and in the circumstances of the case of the respondent and in law the Respondent is not liable to any interest u/s 201(1A) of the act. 2.The assessee,a renowned hospital of Mumbai,is engaged in the activity of providing healthcare services and doing medical research. It is managed by National Health & Education Society popularly known as P.D.Hinduja Hospital & Medical Research Centre (HH).A survey operation under section 133A of the Act was carried out at the hospital premises of the assessee on 04/10/ 2010 for verification of the compliance of the provisions of tax deduction at source (TDS).During the course of survey, statement of Deepak Samant,Director(Finance)was also recorded. As a result, proceedings under section 201 (1) of the Act were initiated and the assessee was required to show cause as to why it should not be treated to be an Assessee-in-default(A-I-D)in respect of certain payments. The assessee furnished its reply and various details as required by the AO. After considering the same, the AO passed the orders u/s.201(1) in respect of these assessment years,holding it to be an A-I- 4 ITA-4878-79 & ors, Natl. Health Edu. Soc. D on certain counts and had accordingly raised demands of tax against the assessee u/s . 201 (1) of the Act.Total defaultu/s.201(1)was calculated at Rs. 4.92 Crores and Rs 5.46 crores for assessment years under appeal. Subsequently order under section 201(1A)of the Act were also passed on 28/09/2011 raising demand of Rs.4.43 Crores and Rs 4.26 crores under the head `interest payable' for respective years under appeal. 3.Aggrieved by the order of the AO, the assessee filed an appeal before the First Appellate Authority (FAA). Before him, it was submitted that the time limit for making assessment u/s 201(1) for the AY 2004-05 and onwards had expired. The assessee filed a chart in this regard and itread as under: Sr. Assessment Alleged Short Year of Action U/s U/s 201 * Law as on date of No Year Deduction Rs. Alleged 201 default will apply: Benett Default 4.10.10 Coleman & Co. Ltd. v. V.P. Damle(1986) 157 ITR 812(Bom) 1 2004-05 04,92,61,089/- 31.03.04 *6years Time Limit for completion of Assessment over 2 2005-06 05,46,47,787/- 31.03.04 *5 years Time Limit for completion of Assessment over 3 2006-07 05,77,89,288/- 31.03.04 *4 years Time Limit for completion of Assessment over It was contended that subsequent to insertion of proviso to section 201(3) or prior to that order passed u/s. 201/201(A) would not survive as same were ab-initio bad in law. After considering the submission of the assessee and the orders passed by the AO u/s. 201(1) and 201(1A) of the Act,the FAA held that section 201(3) and 201(4) had been insertedin the statute by Finance Act 2009 w.e.f. 01.04.2010.He referred to the provisions of section 201(1) and section 153(3) (ii) and explanation 1.He held that time period of six years in clause-2 of the above section 201(3) had been substituted for four years with retrospective effect from 01.04.2010 by Finance Act, 2012, that section 201(3) and 201(4) had become part of the statute w.e.f. April 2010,that the survey action u/s. 133A was carried out on 04.10.2010, that at that point of time above section were part of the statute,that for the financial year from 2004-05 to 2006-07, as per clause (i) of the section 201(3),the limitation period was two years from the end of FY in which the statement was filed in a case where the statement referred to in section 200 had been filed, that for the FY.under consideration quarterly/yearly statements of TDS were required to be filed in such form and verified in such manner and within such time as provided in the Act,that if the assessee had filed TDS yearly return/ statement of the 4th quarter same would have been filed in May or June 2004 and April or May 2005 in the FY 2003-04 and 2004-05 respectively,that the limitation for passing of order u/s. 201(1) would be two years from the end of the said FY i.e. 31.03.2006 and 31.03. 2007 respectively, that impugned order had been passed on 24.03.2011,that same was beyond limitation period. He further mentioned that the assessee had not furnished any details about the filing of the quarterly/yearly statements of TDS. He, therefore, directed the AO to verify from his records as to whether it had filed the necessary quarterly statements for the FY 2003-04 and 2004-05. He held that if the quarterly statements as required u/s. 203 had been filed within the due dates the orders passed by the AO were invalid and had to be annulled. He further mentioned that if the assessee had not filed the TDS statement as per law then its case would fall under clause (ii) of section 201(3) of the Act and the time period of 6 years from the end of the FY.would be available with the AO and the orders passed by him would be valid orders.As stated earlier, he directed the AO to verify the facts and follow his instructions. 5 ITA-4878-79 & ors, Natl. Health Edu. Soc. 4.Before us,the Departmental Authority (DR) relied upon the order of the AO.Authorised Representative (AR) stated that order passed by the AO was beyond the prescribe time limit,that all the grounds of appeal in all the four appeals of the department as well as the two cross objections filed by assessee are covered by the orders of ITAT for the AY.s.2006-07 to 2010-11. 5.We have heard the rival submissions and perused the material before us.We have also perused the facts of the present case as well as the orders of ITAT in case of the appellant for AY.s.2006-07 to 2010-11 and we are satisfied that issues covered in those appeals are identical to the facts and issues of the present appeals.The issue time limit for passing the orders u/s.201(1)has already been decided in case of the assessee in Appeal No 4935/M/ 2013 and 4937/M/0213 for AY 2006-07 in para no 5 as under :- "We find that the FAA has not given any direct finding. He had given direction to the AO to find out the details of filing of quarterly statements for the year considerationand `to verify for his records as to whether the assessee had filed the necessary quarterly statements (or yearly TDS return)'.He further held that if the quarterly statement as required under section 201(3) had been filed with the due dates, the order passed by the AO was invalid and had to be annulled. He also mentioned that the assessee had not filed the TDS statements for the year under appeal as per law the case would be governed by the provisions of section 201(ii) of the Act and the impugned order passed would be treated valid. In our opinion, the order of the FAA does not suffer from any legal infirmity. Provisions of section 201(3) were amended and word six years were substituted by words four years with retrospective effect from 1April 2010.Survey action carried out in October 2010 and the amendment had come on statute before six months. So, the FAA,in our opinion has rightly interpreted the section and the time limit. Here, it would be useful to refer to CBDT Circular dated 03.06. 2010 and same reads as under: "It has been provided that an Order U/s 201(1) for failure to deduct the whole or any part of the tax as required under this Act, if the deductee is a resident taxpayer, shall be passed within two years from the end of the financial year in which the statement of tax deduction at source is filed by the deductor.Where no such statement is filed, such Order can be passed up till four years from the end of the financial year in which the payment is made or credit is given. To provide sufficient time for pending cases, it is provided that such proceedings for the financial year beginning from 1st April, 2007 & earlier years can be completed by the 31.03.2011" As the circular has clarified the position about the time limit,soin our opinion now there is no scope for any ambiguity.Time limit depends upon the filing of quarterly/yearly statement. The FAA has emphasized the same point and has directed the AO to make verification, as stated earlier. In these circumstances, we are of the opinion that the order of the FAA does not suffer from any legal infirmity. ConfirmingConfirming his order,we decide effective ground [GOA a) to d)], pertaining to time limit against the AO."
Therefore,respectfully following the above decision,we decide effective ground no(a ) to (f) of appeal no 4878 /m/2013 for Ay 2004-05 and Ground nos.(a) to (f) of appeal no. 4878/M/ 2013 of AY 2004-05 and ground no (a) to (d) of appeal no.4879 of AY 2005-06 pertaining to time limit against the AO. In view of the above discussion,we hold that the orders of FAA for AY.2004-05 and 2005-06 do not suffer from any legal infirmity,therefore ground no (e) to(g) of appeal no 4879/ M/ 2013 for AY 2005-06 by revenue do not survive and hence dismissed. ITA/4971/Mum/2013.AY 2004-05 and ITA/4972/M/2013-AY.2005-06 : 6.These appeals are preferred against order of FAA where the orders passed u/s 201 (1A) of the Act ,where order u/s 201(1) has been annulled. Therefore, the orders charging interest u/s 201(1A)charging interest on shortfall in deduction of tax at sources also do not survive. Following our order passed u/s.201(1)of the Act,where we have decided the effective ground of appeal against the AO,we hold that the order of the FAA does not suffer from any legal infirmity and therefore the orders charging interest u/s 201(1A)also do not survive. 6 ITA-4878-79 & ors, Natl. Health Edu. Soc. C.O/191 for AY 2004-05 and CO No 192/Mum/2014 for AY 2005-06 7.Both these COs are preferred by Assessee are in support of the order of the FAA.We have already upheld the order of the FAA while deciding the issue of time limit.Therefore, GOA 1 is decided in favour of the assessee. 8.Ground No 2 of the CO is regarding non-chargeability of interest u/s 201(1A) of the act.As we have already upheld that orders passed for both the years u/s 201(1) of the act by FAA does not suffer from legal infirmity,so,the grounds regarding charging of interest become infructuous.Therefore, same stands dismissed. C.O/211 for AY 2004-05 and CO No 212/Mum/2014 for AY 2005-06 9.Both the Cos filed by assessee are supportingthe order of the FAA as well contesting the issues on merit.We have already upheld the order of the FAA while deciding the issue of time limit.Therefore,GOA 1 of CO.s stand decided in favour of the assessee 10.Grounds No.2 to 4 of both CO.s are against the merits of the individual issues of tax deduction at sources contesting that assessee should not be "deemed to be in default" for various payments.As we have cancelled the orders u/s 201(1) and 201(1A) of the Act,passed by the TDS officer,so,these grounds are not required to be adjudicated on merits. As a result,appeals filed by the AO stand dismissed and the CO.s of the assessee are allowed for statistical purposes. . Order pronounced in open court on 19th August, 2015. 19th ,2015 Sd/- Sd/- (. , / D.MANMOHAN ) ( / RAJENDRA) / VICE PRESIDENT / ACCOUNTANT MEMBER /Mumbai, /Date: 19/08/2015 ... Jv.Sr.PS. /Copy of the Order forwarded to : 1.Appellant / 2. Respondent / 3.The concerned CIT(A)/ , 4.The concerned CIT / 5.DR " F" Bench, ITAT, Mumbai / , ,.. . 6.Guard File/ //True Copy// / BY ORDER, / Dy./Asst. Registrar , /ITAT, Mumbai. 7
 
 
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