Prince Yarnn India Limited, Erode V. DCIT, Ghaziabad

ITA 1238/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7779 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 03-02-2016
• Assessment Year: misc
• Appeal Filed On: 22-05-2015
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: S SRIDHAR ERODE

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , ! ' ! # . $% , & '( BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ ITA NOS. 1236, 1237 & 1238/MDS/15 / ASSESSMENT YEAR : 2013-14 M/S. PRINCE YARNN INDIA LIMITED, C/O SRI S. SRIDHAR, ADVOCATE, 112/1, PERIYAR STREET, ERODE-638 001. PAN AAECP1254A APPELLANT) V. THE DEPUTY COMMISSIONER OF INCOME-TAX, CPC TDS, RESPONDENT) / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE (ERODE) / RESPONDENT BY : SHRI A.B.KOLI, JCIT ! / DATE OF HEARING : 03.02.2016 '# ! / DATE OF PRONOUNCEMENT: 09.03.2016 ) / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER ALL THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST DIFFERENT ORDERS OF THE COMMISSIONER OF INC OME- ITA 1236 TO 1238/15 2 TAX(APPEALS) FOR THE ASSESSMENT YEAR 2013-14. SINC E, COMMON ISSUE ARISES IN ALL IN THESE APPEALS, THESE ARE CLUBBED TOGETHER, HEARD TOGETHER AND DISPOSED OFF B Y THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ONLY COMMON ISSUE IN THESE APPEALS IS WITH REGARD TO LEVY OF FEE U/S.234E OF THE ACT WHILE PRO CESSING THE STATEMENT FURNISHED BY THE ASSESSEE U/S.200A OF THE ACT. 3. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE OP INION THAT SIMILAR ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN THE CASE OF M/S. NEELAGIRIS TEXTILES IN ITA NOS.795, 796 & 797/MDS/2015. VIDE ORDER DATED 10.7.2015, THE TRIB UNAL HAS HELD AS UNDER : 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. SECTION 200A OF THE ACT PROVIDES FOR PROCESSING OF THE STATEMENT OF TAX DEDUCTED AT SOURCE BY MAKING ADJUSTMENT AS PROVIDED IN THAT SECTION. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE PROVISIONS OF SECTION 200A OF THE ACT:- 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOU RCE OR A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SE CTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL B E PROCESSED IN THE FOLLOWING MANNER, NAMELY : (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, ITA 1236 TO 1238/15 3 NAMELY : (I) ANY ARITHMETICAL ERROR IN THE STATEMENT ; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMATION IN THE STATEMENT ; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT ; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTME NT OF AMOUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST ; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C) ; AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHA LL BE GRANTED TO THE DEDUCTOR : PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FI NANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION FOR THE PURPOSES OF THIS SUB-SECTION, AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN TH E STATEMENT SHALL MEAN A ON THE BASIS OF AN ENTRY, IN THE STATE MENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT ; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOUR CE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF TH IS ACT ; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB- SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRA LISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB-SEC TION. 7. THE ASSESSING OFFICER CANNOT MAKE ANY ADJUSTMENT OTHER THAN THE ONE PRESCRIBED ABOVE IN SECTION 200A OF THE ACT. BY FINANCE ACT, 2015, WITH EFFECT FROM ITA 1236 TO 1238/15 4 01.06.2015, THE PARLIAMENT AMENDED SECTION 200A BY SUBSTITUTING SUB-SECTION (1) OF CLAUSES (C) TO (E). FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE AMENDMENT MADE IN SECTION 200A BY THE FINANCE ACT, 2015 AS UNDER:- IN SECTION 200A OF THE INCOME-TAX ACT, IN SUB-SECTI ON (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WITH EFFECT FROM THE 1 ST DAY OF JUNE, 2015, NAMELY:- (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 234E; (D) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF TH E AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGA INST ANY AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SEC TION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE; (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PA YABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUS E (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRAN TED TO THE DEDUCTOR. THEREFORE, IT IS OBVIOUS THAT PRIOR TO 01.06.2015, THERE WAS NO ENABLING PROVISION IN SECTION 200A OF THE AC T FOR MAKING ADJUSTMENT IN RESPECT OF THE STATEMENT FILED BY THE ASSESSEE WITH REGARD TO TAX DEDUCTED AT SOURCE BY LEVYING FEE UNDER SECTION 234E OF THE ACT. THE PARLIAMENT FOR THE FIRST TIME ENABLED THE ASSESSING OFFICER TO MAKE ADJUSTMENT BY LEVYING FEE UNDER SEC TION 234E OF THE ACT WITH EFFECT FROM 01.06.2015. THEREF ORE, AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE ASSE SSEE, WHILE PROCESSING STATEMENT UNDER SECTION 200A OF TH E ACT, THE ASSESSING OFFICER CANNOT MAKE ANY ADJUSTME NT BY LEVYING FEE UNDER SECTION 234E PRIOR TO 01.06.20 15.IN THE CASE BEFORE US, THE ASSESSING OFFICER LEVIED FE E ITA 1236 TO 1238/15 5 UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE UNDER SECTION 2 00A OF THE ACT. THEREFORE, THIS TRIBUNAL IS OF THE CONS IDERED OPINION THAT THE FEE LEVIED BY THE ASSESSING OFFICE R UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE IS BEYOND THE S COPE OF ADJUSTMENT PROVIDED UNDER SECTION 200A OF THE AC T. THEREFORE, SUCH ADJUSTMENT CANNOT STAND IN THE EYE OF LAW. 8. THE NEXT CONTENTION OF THE ASSESSEE IS THAT SECT ION 234E OF THE ACT SAYS THAT THE ASSESSEE SHALL BE LI ABLE TO PAY BY WAY OF FEE, THEREFORE, THE ASSESSEE HAS TO VOLUNTARILY PAY THE FEE AND THE ASSESSING OFFICER H AS NO AUTHORITY TO LEVY FEE. THE ARGUMENT OF THE LD.COUNS EL FOR THE ASSESSEE IS VERY ATTRACTIVE AND FANCIFUL. HOWEV ER, WE DO NOT FIND ANY SUBSTANCE IN THAT ARGUMENT. WHEN SECTION 234E CLEARLY SAYS THAT THE ASSESSEE IS LIAB LE TO PAY FEE FOR THE DELAY IN DELIVERY OF THE STATEMENT WITH REGARD TO TAX DEDUCTED AT SOURCE, THE ASSESSEE SHAL L PAY THE FEE AS PROVIDED UNDER SECTION 234E(1) OF THE AC T BEFORE DELIVERY OF THE STATEMENT UNDER SECTION200(3 ) OF THE ACT. IF THE ASSESSEE FAILS TO PAY THE FEE FOR T HE PERIODS OF DELAY, THEN THE ASSESSING AUTHORITY HAS ALL THE POWERS TO LEVY FEE WHILE PROCESSING THE STATEMENT U NDER SECTION 200A OF THE ACT BY MAKING ADJUSTMENT AFTER 01.06.2015. HOWEVER, PRIOR TO 01.06.2015, THE ASSESSING OFFICER HAD EVERY AUTHORITY TO PASS AN OR DER SEPARATELY LEVYING FEE UNDER SECTION 234E OF THE AC T. WHAT IS NOT PERMISSIBLE IS THAT LEVY OF FEE UNDER S ECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF T AX DEDUCTED AT SOURCE AND MAKING ADJUSTMENT BEFORE 01.06.2015. IT DOES NOT MEAN THAT THE ASSESSING OFF ICER CANNOT PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEE FOR THE DELAY IN FILING THE STATEME NT AS REQUIRED UNDER SECTION 200(3) OF THE ACT. 9. THE CONTENTION OF THE ASSESSEE CAN ALSO BE EXAMI NED IN THE LIGHT OF THE PROVISIONS OF INDIAN PENAL CODE . SECTION 396 OF INDIAN PENAL CODE PROVIDES FOR ITA 1236 TO 1238/15 6 PUNISHMENT FOR DACOITY WITH MURDER. THE PUNISHMENT IS IMPRISONMENT FOR LIFE OR RIGOROUS IMPRISONMENT FOR A TERM WHICH MAY BE EXTENDED TO TEN YEARS AND ALSO LIABLE TO FINE. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING SECTION 396 OF INDIAN PENAL CODE, HEREUNDER:- 396. DACOITY WITH MURDER IF ANY ONE OF FIVE OR MORE PERSONS, WHO ARE CONJOINTLY COMMITTING DACOITY , COMMITS MURDER IN SO COMMITTING DACOITY, EVERY ONE OF THOSE PERSONS SHALL BE PUNISHED WITH DEATH, OR IMPRISONMENT FOR LIFE, OR RIGOROUS IMPRISONMENT FOR A TERM WHICH MAY EXTEND TO TEN YEARS, AND SHALL ALSO BE LIABLE TO FINE . SIMILARLY, SECTION 408 OF INDIAN PENAL CODE PROVIDE S FOR CRIMINAL BREACH OF TRUST BY A CLERK OR SERVANT. IN ADDITION TO IMPRISONMENT WHICH MAY EXTEND TO SEVEN YEARS, TH E ACCUSED WHO IS FOUND TO BE GUILTY SHALL ALSO BE LIA BLE TO FINE. SIMILARLY, THE OTHER PROVISIONS OF INDIAN PEN AL CODE ALSO SAY THAT IN ADDITION TO IMPRISONMENT, THE ACCU SED SHALL BE LIABLE TO PAY FINE. THE LANGUAGE USED BY T HE PARLIAMENT IN INDIAN PENAL CODE IS SHALL ALSO BE L IABLE TO FINE. THIS MEANS THAT THE MAGISTRATE OR SESSION S JUDGE, WHO TRIES THE ACCUSED FOR AN OFFENCE PUNISHA BLE UNDER THE PROVISIONS OF INDIAN PENAL CODE, IN ADDIT ION TO PUNISHMENT OF IMPRISONMENT, SHALL ALSO LEVY FINE. IF THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS ACCEPTED, THEN THE MAGISTRATE OR SESSIONS JUDGE, AS THE CASE MAY BE, WHO IS TRYING THE ACCUSED FOR THE OFFE NCE PUNISHABLE UNDER INDIAN PENCAL CODE, MAY NOT HAVE AUTHORITY TO LEVY FINE. 10. IT IS WELL KNOWN PRINCIPLE THAT THE FINE PRESCR IBED UNDER THE INDIAN PENAL CODE HAS TO BE LEVIED BY THE CONCERNED MAGISTRATE OR SESSIONS JUDGE WHO IS TRYIN G THE OFFENCE PUNISHABLE UNDER THE INDIAN PENAL CODE. THEREFORE, THE CONTENTION OF THE LD.COUNSEL THAT ME RELY BECAUSE THE PARLIAMENT HAS USED THE LANGUAGE HE SH ALL BELIABLE TO PAY BY WAY OF FEE, THE ASSESSEE HAS TO PAY ITA 1236 TO 1238/15 7 THE FEE VOLUNTARILY AND THE ASSESSING OFFICER HAS N O AUTHORITY TO LEVY FEE COULD NOT BE ACCEPTED. NO ONE WOULD COME FORWARD TO PAY THE FEE VOLUNTARILY UNLES S THERE IS A COMPULSION UNDER THE STATUTORY PROVISION . THE PARLIAMENT WELCOMES THE CITIZENS TO COME FORWARD AN D COMPLY WITH THE PROVISIONS OF THE ACT BY PAYING THE PRESCRIBED FEE BEFORE FILING THE STATEMENT UNDER SE CTION 200(3) OF THE ACT. HOWEVER, IF THE ASSESSEE FAILS T O PAY THE FEE BEFORE FILING THE STATEMENT UNDER SECTION 2 00(3) OF THE ACT, THE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT IN PASSING A SEPARATE ORDER LEVYING SUCH A FEE IN ADDITION TO PROCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT. IN OTHER WORDS, BEFORE 01.06.2015, THE ASSESSING AUTHORITY COULD PASS A SEPARATE ORDER UND ER SECTION 234E LEVYING FEE FOR DELAY IN FILING THE ST ATEMENT UNDER SECTION 200(3) OF THE ACT. HOWEVER, AFTER 01.06.2015, THE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT TO LEVY FEE UNDER SECTION 234E OF THE ACT EVE N WHILE PROCESSING THE STATEMENT UNDER SECTION 200A A ND MAKING ADJUSTMENT. 11. IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER H AS EXCEEDED HIS JURISDICTION IN LEVYING FEE UNDER SECT ION 234E WHILE PROCESSING THE STATEMENT AND MAKE ADJUSTMENT UNDER SECTION 200A OF THE ACT. THEREFORE , THE IMPUGNED INTIMATION OF THE LOWER AUTHORITIES LE VYING FEE UNDER SECTION 234E OF THE ACT CANNOT BE SUSTAIN ED IN LAW. HOWEVER, IT IS MADE CLEAR THAT IT IS OPEN T O THE ASSESSING OFFICER TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEE PROVIDED THE LIMITATION FOR SUCH A LEVY HAS NOT EXPIRED. ACCORDI NGLY, THE INTIMATION UNDER SECTION 200A AS CONFIRMED BY T HE CIT(APPEALS) IN SOFAR AS LEVY OF FEE UNDER SECTION 234E IS SET ASIDE AND FEE LEVIED IS DELETED. HOWEVER, TH E OTHER ADJUSTMENT MADE BY THE ASSESSING OFFICER IN THE IMPUGNED INTIMATION SHALL STAND AS SUCH. 12. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED AS INDICATED ABOVE. ITA 1236 TO 1238/15 8 IN VIEW OF THE ABOVE, WE ARE INCLINED TO ALLOW THE APPEALS OF THE ASSESSEE. 4. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 9 TH OF MARCH, 2016 AT CHENNAI. SD/- SD/- ( $ % . & '( ) ( ) * + , ) DUVVURU RL REDDY - ./012304556037- 8 9: /JUDICIAL MEMBER ! 9:;<<5=1>01>?@AB@3 )8 /CHENNAI, C9 /DATED, THE 9 TH MARCH, 2016. MPO* 9D EFGF /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. H- /CIT(A) 4. H /CIT 5. FIJ K /DR 6. J(L /GF.