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11-01-2019, BG Exploration & Production, Section 192, 221, 200, Tribunal Delhi

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5 months 6 days ago #8363 by amit
Section - 192, 221, 200, 153, 201, 158BD
Order Date - 11-01-2019
Favouring - Assessee Partly
Court - Tribunal Delhi
Appellant - BG Exploration & Production India Ltd
Respondent - ITO
Justice - N. K. BILLAIYA AM & SUCHITRA KAMBLE JM
Citation - 119Taxpundit159
Appeal No. - ITA No.2443 to 2445 /DEL/2016
Asstt. Year - 2006-07 to 2008-09

Order

PER : N. K. BILLAIYA, AM:

ITANo.2443/Del/2016, 2444/Del/2016 and 2445/Del/2016 are appeals by the assessee preferred against the three separate orders of the CIT(A)-2, Noida09.3.2016 pertaining to A.Y.2006-07, 2007-08 and 2008-09.

2. Since common issues are involved in all these appeals they were heard together and are disposed of by this common order for the sake of convenience.

3. The first common grievance is that the proceedings are barred by limitation. Ground No. 2 is not pressed and the same is dismissed as not pressed. The third common grievance is that the CIT(A) erred in holding that the payments made by the assessee are in the nature of fees for technical services u/s 9 (1)

(vii) of the Act and fees for included services under Article 12 of the DTAA between India and the United States of America.

4. With ground No.1 the assessee claims that the proceedings are barred by limita ion.

5. Representatives of both the sides were heard at length. Case records carefully perused and the judicial decisions relied upon carefully considered.

6. Facts on record show that in all the three years the orde framed u/s 201 (1) / 201 (1A) are dated 28.03.2013. The counsel vehemently stated that the orders so framed are barred by limitation. Before proceeding further let us consider the provisions of the Act as under :-

Consequences of failure to deduct or pay._—

201. —[(1) Where any person, including the principal officer of a company,—

( a) who is required to deduct any sum in accordance with the provisions of this Act; or

( b) referred to in sub-section (1A) of section 192 , being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax:

Provided that no penalty shall be charged under section 221 from such person, unless the Assessing Officer is satisfied that such person, without good and sufficient reasons, has failed to deduct and pay such tax.] 94-99 [(1A) Without prejudice to the provisions of sub-section (I), if any such person, principal officer or company as is referred to in that subsection does not deduct the whole or any part of the tax or after deducting fails to pay the tax as required by or under this Act, he or it shall be liable to pay simple inte est,— (i) at one per cent forevery month or part of a month on the amount of such tax from the date on which such tax was deductible to the date on which such tax is deducted; and

(ii) at one and one-half per cent for every> month or part of a month on the amount of such tax from the date on which such tax was deducted to the date on which such tax is actually paid, and such interest shall be paid before furnishing the statement in accordance with the provisions of subsection (3) of section 200. ]

(2) Where the tax has not been paid as aforesaid after it is deducted, - [the amount of the tax together wi h the amount of simple interest thereon referred to in sub-section (1 A)] shall be a charge upon all the assets of the person, or the company, as the case may be, referred to in sub-section (1).

2(3) No order shall be made under sub-section (1) deeming a person to be an assessee in default for failure to deduct the whole or any part of the tax from a 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

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