GOVT. INDUSTRIAL TRAINING INSTITUTE PK GOVT. ITI, GURDASPUR V. ACIT, CPC(TDS), GHAZIABAD

ITA 132/ASR/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5018 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 09-07-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S. M. SUREDNRANATH
• Keywords: Retrospective amendment; TDS
• Section: 234E; 200A; 192; 73; 13; 22; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR BEFORE SHRI LALIET KUMAR, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER I.T.A NOS. 128 TO 134/ASR/2020 (ASSESSMENT YEARS: 2013-14 & 2015-16) GOVT. INDUSTRIAL TRAINING INSTITUTE, PK GOVT. ITI, G.T. ROAD, GURDASPUR [PAN: AMRG10409A] (ASSESSEE) VS. ACIT, CPC(TDS), GHAZIABAD (REVENUE) ASSESSEE BY SH. ASHWANI KALIA, C.A. REVENUE BY SH. S. M. SUREDNRANATH D. R. DATE OF HEARING 24.09.2021 DATE OF PRONOUNCEMENT 24.09.2021 ORDER PER BENCH: THIS BUNCH OF APPEALS IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), AGAINST UPHOLDING LEVY OF FEE U/S 234E OF THE INCOME TAX AC T, 1961(HEREINAFTER SHORT THE ACT). I.T.A NOS. 128 TO 134/ASR/2020 2 2. SINCE, THERE IS A COMMON ISSUE BEING INVOLVED IN ALL THESE APPEALS, HENCE THEY ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FO R THE SAKE OF CONVENIENCE AND BREVITY. WE HAVE HEARD THE LD. COUNSEL OF ASSESSEE AND REVENUE FOR ALL THE CASES. 3. THE AO IMPOSED LATE FEES U/S 234E OF THE ACT., W HERE THE ENABLING CLAUSE 1 (C) WAS INSERTED IN THE SECTION 200A W.E.F. 01.06.2015. ACCORDINGLY, THE LD. CIT(A) PARTLY ALLOWED RELIEF TO THE ASSESSEE, RELYING ON THE ITAT , JAIPUR BENCH IN THE CASE OF SH. UTAM CHAND GANGWAL VS ACIT, CPC, TDS WHEREIN IT WAS HELD AT PAGES 9 TO 11 AS UNDER: IN THE INSTANT CASE, THE ASSESSEE FILED ITS TDS RE TURN IN FORM NO. 26Q FOR THE QUARTER ENDED 31ST MARCH, 2015 ON 22ND JULY , 2015 AND THE SAME WAS PROCESSED AND AN INTIMATION DATED 30 JULY, 2015 WAS ISSUED BY THE AO U/S 200A OF THE ACT. THUS, BOTH THE FILING OF TH E RETURN OF INCOME BY THE ASSESSEE AND PROCESSING THEREOF HAS HAPPENED MU CH AFTER 1.6.2015 I.E, THE DATE OF ASSUMPTION OF JURISDICTION BY THE AO U/S 200A(1)(C) TO LEVY FEES UNDER SECTION 234E OF THE ACT. EVEN THOUG H THE QUARTERLY RETURN PERTAINS TO QUARTER ENDED 31.3.2015, THE FACT REMAI NS THAT THERE IS A CONTINUING DEFAULT EVEN AFTERL.6.2015 AND THE RETUR N WAS ACTUALLY FILED ON 22.07.2015. THE SAID PROVISIONS CANNOT BE READ TO S AY THAT WHERE AN ASSESSEE FILE HIS RETURN OF INCOME FOR THE PERIOD F ALLING AFTER 1.6.2015 AND THERE IS A DELAY ON HIS PART TO FILE THE RETURN IN TIME, HE WILL SUFFER THE LEVY OF FEES, HOWEVER, AN ASSESSEE WHO HAS DELAYED THE FILING OF THE RETURN OF INCOME EVEN PERTAINING TO THE PERIOD PRIO R TO 1.06.2015, HE CAN BE ABSOLVED FROM SUCH LEVY EVEN THOUGH THERE IS A C ONTINUOUS DEFAULT, ON HIS PART EVEN AFTER 1.6.2015. IN OUR VIEW, THE AO H AS ACQUIRED THE JURISDICTION TO LEVY THE FEES AS ON 1.06.2015 AND T HEREFORE, ANY RETURN FILED AND PROCESSED AFTER 1.6.2015 WILL FALL WITHIN HIS JURISDICTION WHERE ON OCCURRENCE OF ANY DEFAULT ON PART OF THE ASSESSEE, HE CAN LEVY FEE SO MANDATED U/S 234E OF THE ACT. I.T.A NOS. 128 TO 134/ASR/2020 3 THEREFORE, IRRESPECTIVE OF THE PERIOD TO WHICH THE QUARTERLY RETURN PERTAINS, WHERE THE RETURN IS FILED AFTER 1.6.2015, THE AO CAN LEVY FEE UNDER SECTION 234E OF THE ACT. AT THE SAME TIME, IN TERMS OF DETERMINING THE PERIOD FOR WHICH FEES CAN BE LEVIED, ONLY SAVIN G COULD BE THAT FOR THE PERIOD OF DELAY FAILING PRIOR TO 1.06.2015, THERE C OULD NOT BE ANY LEVY OF FEES AS THE ASSUMPTION OF JURISDICTION TO LEVY SUCH FEES HAVE BEEN HELD BY THE COURTS TO BE PROSPECTIVE IN NATURE. HOWEVER, WHERE THE DELAY CONTINUES BEYOND 1.06.2015, THE AO IS WELL WITHIN H IS JURISDICTION TO LEVY FEES UNDER SECTION 234E FOR THE PERIOD STARTING 1.0 6.2015 TO THE DATE OF ACTUAL FILING OF THE TDS RETURN. IN LIGHT OF THE SA ME, IN THE INSTANT CASE, THE LEVY OF FEES UNDER SECTION 234E IS UPHELD FOR T HE PERIOD 1.06.2015 TO THE DATE OF ACTUAL FILING OF THE TDS RETURN WHICH I S 22.07.2015 AND THE BALANCE FEE SO LEVIED IS HEREBY DELETED. IN THE RES ULT, THE GROUND OF APPEAL IS PARTLY ALLOWED. VI) IN VIEW OF THE ABOVE MENTIONED DECISIONS, THE GROUNDS OF APPEAL 1 AND 2 ARE ADJUDICATED AS UNDER: F.Y 2012-13 APPEAL NO F.Y/QUARTER FORM DATE OF FILING REGULAR TDS STATEMENT ORDER PASS DATE LATE FILING FEE U/S 234E(RS) 10503 /2019 - 20 2012 - 13/Q2/24Q 24.9 .2015 30.09 .2015 106800 10505 /2019 - 20 2012 - 13/Q4/24Q 24.9 .2015 30.09 .2015 106800 10504 /2019 - 20 2012 - 13/Q3/24Q 24.9 .2015 30.09.2015 7450 5 THOUGH PERTAINING TO F.Y. 2012-13, THE ABOVE TDS ST ATEMENTS HAVE BEEN FILED BY THE APPELLANT AFTER 01.06.2015. THESE WERE ALSO PROCESSED BY CPC AFTER 01.06.2015, I.E, AFTER THE AMENDMENT TO S ECTION 200A OF THE ACT W.E.F 01.06.2015 EMPOWERING THE AO TO LEVY FEE U/S 234E OF THE ACT AS PART OF THE ADJUSTMENTS PERMISSIBLE U/S 200A OF THE ACT. IT IS A CASE WHERE THERE IS A CONTINUING DEFAULT TILL AFTER 01.0 6.2015. THE AO WAS THUS I.T.A NOS. 128 TO 134/ASR/2020 4 WELL WITHIN HIS JURISDICTION TO LEVY FEE U/S 234E O F THE ACT. THE LEVY OF FEE U/S 234E IS, THEREFORE, UPHELD. HOWEVER, LD AO IS DIRECTED TO LEVY LATE FILING FEE U/S 234E FROM 01.06.2015 TO THE DATE OF FILING OF THE REGULAR TDS STATEMENT. GROUNDS OF APPEAL 1 AND 2 FOR THE ABOVE THREE APPEA LS ARE PARTLY ALLOWED. F.Y 2013-14 APPEAL NO F.Y/QUARTER /FORM DATE OF FILLING REGULAR TDS STATEMENT ORDER PASS DATE LATE FILING FEE U/S 234E (RS) 10506 /2019 - 20 2013 - 14/Q1/24Q 22.2 .201 5 26.2 .201 5 64400 10507/2019-20 2013- 14/Q2/24Q 22.2.2015 26.2.2015 64400 10508 /2019 - 20 2013 - 14/Q3/24Q 22.2 .201 5 26.2.2015 64400 10509/2019 - 20 2013 - 14/Q4/24Q 22.2 .201 5 26.2.2015 55400 F.Y 2014-15 APPEAL NO F.Y/QUARTER /FORM DATE OF FILLING REGULAR TDS STATEMENT ORDER PASS DATE LATE FILING FEE U/S 234E (RS) 1 0510 /2019 - 20 2013 - 14/Q1/24Q 17.09.2015 22 . 9 .201 5 82400 10511/2019 - 20 2014 - 15/Q2 25.09.2015 30.09.2015 64000 10512/2019 - 20 2014 - 15/Q3 19.09.2015 22.09.2015 45600 10515/2019 - 20 2014 - 15/Q4 25.09.2015 30.09.2015 24800 PERTAINING TO F.Y. 2013-14, THE ABOVE TDS STATEMENT S HAVE BEEN FILED BY THE APPELLANT BEFORE 01.06.2015. THESE WERE ALSO PR OCESSED BEFORE I.T.A NOS. 128 TO 134/ASR/2020 5 01.06.2015, I.E, BEFORE THE AMENDMENT TO SECTION 20 0A OF THE ACT W.E.F 01.06.2015 EMPOWERING THE AO TO LEVY FEE U/S 234E O F THE ACT AS PART OF THE ADJUSTMENTS PERMISSIBLE U/S 200A OF THE ACT. IN VIEW OF THE ABOVE FACTS, THE LEVY OF LATE FILING FEE U/S 234E CANNOT BE UPHELD AND IS DELETED. GROUNDS OF APPEAL 1 AND 2 FOR THE ABOVE THREE APPEA LS ARE ALLOWED. GROUNDS OF APPEAL 3,4 AND 5 ARE GENERAL IN NATURE. 4. HAVING HEARD BOTH THE PARTIES AND CONSIDERING TH E FACTS OF ALL THESE APPEALS AS TO WHETHER LATE FILING FEE U/S 234E OF THE ACT HAS RIGHTLY BEEN CHARGED IN THE INTIMATION ISSUED U/S 200A/206CB OF THE ACT WHILE P ROCESSING THE TDS RETURNS/STATEMENTS AS THE ENABLING CLAUSE (C) HAVIN G BEEN INSERTED IN THE SECTION W.E.F. 01.06.2015. WE UNDERSTAND THAT EARLIER, THER E WAS NO ENABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U/S 234E. AS SUCH, AS PER THE ASSESSEE, IN RESPECT OF TDS STATEMENT FILED FOR A PERIOD UP TO 26.11.2015, NO LATE FEE COULD BE LEVIED IN THE INTIMATION ISSUED U/S 20 0A OF THE ACT. THE DETAILS OF THE TDS DEDUCTION AND STATEMENT FILED BY THE ASSESSEES IS REPRODUCED HEREUNDER: 5. THE LD. ADDL. CIT(DR) SUPPORTED THE IMPUGNED ORD ER. SR. NO. ITA NO. F.Y. QUARTER ORDERPASS DATED 1. 1 2 8 /ASR/2020 2012 - 13 Q - 2 30/09 /2015 2. 129 /ASR/2020 2012 - 13 Q - 3 30/09 /2015 3. 130 /ASR/2020 2012 - 13 Q - 4 30/09 /2015 4. 131/ASR/2020 2014 - 15 Q - 1 22/ 09 / 2015 5. 132/ASR/2020 2014 - 15 Q - 2 30/09/ 2015 6. 133/ASR/2020 2014 - 15 Q - 3 22/09/ 2015 7. 134/ASR/2020 2014 - 15 Q - 4 30/09/ 2 015 I.T.A NOS. 128 TO 134/ASR/2020 6 6. ON SIMILAR FACTS, THE SAME ISSUE HAS BEEN ADJUDI CATED BY THE CO-ORDINATED BENCH ITAT AGRA,IN THE CASE OF SUDERSHAN GOYAL VS. DCIT (TDS) IN ITA NO. 442/AGRA/2017 VIDE ORDER DTD. 09.04.2018. THE RELEV ANT PART OF THE ORDER IS REPRODUCED AS FOLLOWS: 3. HEARD. THE LD. CIT(A), WHILE DECIDING THE MATTE R AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON RAJESH KAURANI VS. UOI, 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION OF TAX AT SOURCE AND FOR MAKING ADJUSTMENTS. THE LD . CIT(A) HAS HELD THAT THIS DECISION WAS DELIVERED AFTER CONSIDERING NUMER OUS ITAT/HIGH COURT DECISIONS AND SO, THIS DECISION IN RAJESH KAURANI (SUPRA) HOLDS THE FIELD. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST RAJESH KAURANI (SUPRA), SHRI FATEHRAJ SINGHVI AND OTHERS VS.UOI, 73 TAXMANN.COM 252 (KER), AS ALSO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES THE ISSUE IN FAVOUR OF THE ASSESSE E. THE ONLY OBJECTION OF THE LD. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TAKEN INTO CONSIDERATION BY THE HONBLE GUJARAT HIG H COURT WHILE PASSING RAJESH KAURANI (SUPRA). HOWEVER, WHILE OBSERVING SO, THE LD. CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE SETTLED LAW T HAT WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFERENT HIGH COURTS O N AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED. IT HAS SO BEEN HELD BY THE HONBLE SUPREME COURT IN CIT VS. VEGETABLE PRODUCT S LTD., 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DECISION AGAI NST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HIGH COURT QUA THE A SSESSEE. 5. IN SHRI FATEHRAJSINGHVI AND OTHERS (SUPRA) IT HAS BEEN HELD, INTER ALIA, AS FOLLOWS: 22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PE R THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE , UNLESS IT IS I.T.A NOS. 128 TO 134/ASR/2020 7 EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTI ON (1) OF SECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFE CT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY , THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION F OR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY T HE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSM ENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WILL NOT PER MIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST. 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING SH RI FATEHRAJSINGHVI AND OTHERS (SUPRA), SIBIA HEALTHCARE PVT. LTD. VS. DC IT (TDS), ORDER DATED 09.06.2015 PASSED IN ITA NO.90/ASR/2015, FOR A.Y.20 13-14, BY THE AMRITSAR BENCH OF THE TRIBUNAL, AND SHRI KAUR CHAN D JAIN VS. DCIT, CPC (TDS) GHAZIABAD, ORDER DATED 15.09.2016, IN ITA NO .378/ASR/2015, FOR A.Y. 2012-13, THE GRIEVANCE OF THE ASSESSEE IS ACCE PTED AS JUSTIFIED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CANCELLED. 7. IN THE ABOVE VIEW, RESPECTFULLY FOLLOWING SHRI FATEHRAJSINGHVI AND ORS (SUPRA), AND OUR OWN FINDING IN THE CASE OF SUDERSHAN GOYAL (SUPRA), AND ITAT, JAIPUR BENCH (SUPRA), WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY, THE ORDERS OF THE CIT(A) ARE HEREBY CONFIRMED. I.T.A NOS. 128 TO 134/ASR/2020 8 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24/09/2021. SD/- SD/- (DR. M.L. MEENA) (LALIET KUMA R) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 24/09/2021 *DOC* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY BY ORDER