“Wherever the Parliament / Legislature wanted to make provisions applicable retrospectively, it has been so provided.”
The New Delhi Bench of the Income Tax Appellate Tribunal ( ITAT ), quashed assessment order barred by limitation, thereby granting relief to Reebok India Company, the assessee.
The assessee is engaged in the business of distribution of foot wear and apparels. As a consequence of the survey proceedings conducted Under Section 133A of the Income-tax Act, 1961on the Ambience Group who are the owners and operators of malls where assessee’s stores are situated.
It came to the notice of the Assessing Officer that the mall owners have collected/recovered expenses in the form of Common Area Maintenance charges on which the deductors/tenants have deducted tax at source @ 2% considering the same to be covered under the provisions of Section 194C of the Act.
The Assessing Officer was of the firm belief that these payments are directly relatable to and being a part of rental activity, tax should have been deducted as per the provisions of section 194I of the Act @ 10% as against 2% being made by the deductor/tenant. Based on this view, order u/s 201(1)/1A of the Act was framed and accordingly, the assessee was directed to pay TDS amount and interest.
Section 201(3) of the Act as amended by Finance Act, 2012 amended on 28/5/2012 was specifically made applicable retrospectively w.e.f. 1/14/2012,whereby limitation period was substituted from four years to six years for passing orders where TDS Statement had not been filed. However, section 201(3) of the Act as amended by Finance Act No.2 of 2014, is stated to have effect from 1st October, 2014.
The said amendment will take effect from 1/10/2014. 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. Therefore, order u/s 201(3) of the Act should have been passed on or before 31.03.2014 whereas the impugned assessment order is dated 30.03.2018.
A Bench consisting of N K Billaiya, Accountant Member and Kul Bharat, Judicial Member observed that “We have no hesitation to hold that the assessment order dated 30.03.2018 is barred by limitation.”
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