DIRECTOR PUNJAB AGRICULTURAL UNIVERSITY FRUIT RESEARCH , HOSHIARPUR V. INCOME TAX OFFICER (TDS), JALANDHAR

ITA 134/ASR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5082 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 11-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHARAN DASS LD.
• Keywords: TDS
• Section: 12; 234E; 200A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, AMRITSAR (VIRTUAL COURT) BEFORE: SHRI. N.K. SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NOS. 130 TO 135/ASR/2019 ASSESSMENT YEARS: 2013-14, 2014-15 & 2015-1 6 DIRECTOR PUNJAB AGRICULTURAL UNIVERSITY FRUIT RESEARCH STATION GANGIAN, DISTT. HOSHIARPUR [TAN NO: JLDD0 1507C] VS. INCOME TAX OFFICER (TDS), JALANDHAR (APPELLANT) (RESPONDENT) APPELLANT BY : WRITTEN SUBMISSIONS RESPONDENT BY: SH. CHARAN DASS (LD. D.R.) DATE OF HEARING: 22.09.2020 DATE OF PRONOUNCEMENT: 22.09.2020 ORDER PER N.K. CHOUDHRY, JM: ALL THESE APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST SEPARATE ORDERS DATED 22-11-2018 IMPUGNED HER EIN PASSED BY THE LD. CIT(A)-1, JALANDHAR U/S 250(6) OF TH E INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) AS PER T HE DETAILS GIVEN BELOW, WHEREBY THE LD. CIT(A) DISMISSED THE APP EALS OF THE ASSESSEE FILED AGAINST ORDERS/INTIMATIONS U/S 200A OF THE ACT. ITA N0S. 130 TO 135/ASR/ 2019 (A.YS .2013-14, 2014-15 & 2015-16) DIRECTOR PUNJAB A GRICULTURAL UNI. VS ITO (TDS) 2 2. THOUGH THE ASSESSEE HAS FILED ADJOURNMENT APPLICATIONS I N ALL THESE APPEAL, HOWEVER IT IS A FACT THAT THE ASSESSEE HAS AL READY FILED WRITTEN SUBMISSIONS IN SUPPORT OF ITS CASE, THEREFORE IN OUR CONSIDERED VIEW CONSIDERING THE ISSUE IT WOULD BE APPROPRIATE TO T HE DECIDE THE CASES ON THE BASIS OF MATERIAL AVAILABLE ON RECORD INCLUDI NG WRITTEN SUBMISSIONS OF THE ASSESSEE. 3. AS ALL THE ABOVE APPEALS UNDER CONSIDERATION INVOLVED SIMILAR AND IDENTICAL ISSUE THEREFORE, FOR THE SAKE OF BREVITY, ITA NO 130/ASR/2019(A.Y. 2012-13) AND ITS FACTS, SHALL BE TAKE N INTO CONSIDERATION AS A LEAD CASE AND RESULT OF THE SAME SHALL A PPLY MUTATIS MUTANDIS TO ALL APPEALS UNDER CONSIDERATION. 4. THE BRIEF FACTS OF THE CASE ARE THAT IN THE INSTANT APP EAL THE ASSESSEE THOUGH DEDUCTED THE TDS AND DEPOSITED WELL IN TI ME, HOWEVER FILED ITS TDS QUARTERLY STATEMENT IN FORM NO. 24Q FOR QUARTER 2 OF F.Y. 2012-13AFTER THE PRESCRIBED DATE, C ONSEQUENTLY THE DELAY IN FILING OF TDS STATEMENT HAS BEEN OCCURRED, THE REFORE THE SI NO. APPEAL NO. F. Y. QUARTER ORDER/INTIMATION DATED U/S 200A OF THE ACT LATE FEE IMPOSED BY (TDS-CPC) 1. ITA NO. 130/ASR/2019 2012-13 2 07/05/2014 9000 2. ITA NO. 131/ASR/2019 2013-14 1 13/03/2014 2680 3. ITA NO. 132/ASR/2019 2013-14 2 13/03/2014 7800 4. ITA NO. 133/ASR/2019 2013-14 3 03/05/2014 12500 5. ITA NO. 134/ASR/2019 2014-15 1 20/01/2015 21000 6. ITA NO. 135/ASR/2019 2014-15 2 20/01/2015 11000 ITA N0S. 130 TO 135/ASR/ 2019 (A.YS .2013-14, 2014-15 & 2015-16) DIRECTOR PUNJAB A GRICULTURAL UNI. VS ITO (TDS) 3 ASSESSING OFFICER (TDS-CPC) HAD IMPOSED A LATE FEE OF RS.9 000 U/S 234E FOR DELAY IN FILING OF QUARTERLY TDS STATEMENT. 5. AGGRIEVED BY THE INTIMATION U/S 200A WHEREIN FEE U/S 234E WAS LEVIED, THE ASSESSEE FILED FIRST APPEAL BEFORE THE L D. CIT(A) WHO VIDE IMPUGNED ORDER DATED 22-11-2018 DISMISSED THE APP EAL OF THE ASSESSEE, WHILE RELYING UPON THE JUDGMENT PASSED BY THE G UJRAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS. UOI [2017] 83 T AXMANN.COM. 137 (GUJ). BEING AGGRIEVED, THE ASSESSEE PREFERRED THE INSTANT APPEAL AGAINST THE IMPUGNED ORDER AND ALSO FILED WRITTEN SUB MISSIONS. THE LD. DR HEAVILY RELIED UPON THE ORDER PASSED BY GUJRAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS. UOI (SUPRA) AND SUPPORTED THE ORDERS PASSED THE AUTHORITIES BELOW. 6. HAVING HEARD THE PARTIES AT LENGTH AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. ISSUES IN THE INSTANT CASE RELATES TO THE IMPOSITION OF LATE FEE FOR DELAY IN FILLING OF TDS ST ATEMENT(S) PRIOR TO AMENDMENT BY WAY OF FINANCE ACT, 2015 WHICH CAME INTO EFFECT FROM 1 ST JUNE 2015 AND AS TO WHETHER THERE WAS ENABLING PROVI SIONS FOR LEVY OF LATE FEE PRIOR TO 1 ST JUNE 2015. 7. GUJRAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS. UO I (SUPRA) HAS HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PROVISI ON PROVIDING THE MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTI ON OF TAX AT SOURCE AND FOR MAKING ADJUSTMENTS AND IT WAS ALWAYS OPEN F OR THE REVENUE TO CHARGE FEES IN TERMS OF SECTION 234E OF THE ACT. ITA N0S. 130 TO 135/ASR/ 2019 (A.YS .2013-14, 2014-15 & 2015-16) DIRECTOR PUNJAB A GRICULTURAL UNI. VS ITO (TDS) 4 8. KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. VS. UNION OF INDIA ((2016) 289 CTR (KAR) 602 HAS HELD THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTION (1) OF SE C. 200A CAN BE READ AS HAVING PROSPECTIVE EFFECT AND NOT HAVING RETROACTIV E CHARACTER OR EFFECT. RESULTANTLY, THE DEMAND U/S 200A FOR COMPUTATION AN D INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPOND ENT FOR THE PERIOD PRIOR TO 1 ST JUNE, 2015. 9. IT WAS FAIRLY SUBMITTED BY THE PARTIES THAT ON THE ISS UE INVOLVED IN THESE CASES, AS ON TODAY THERE IS NO DECISION OF THE JUR ISDICTIONAL HIGH COURT, HOWEVER THERE ARE JUDGMENTS OF DIFFERENT HIGH COURTS ON BOTH SIDES AS RELIED UPON BY THE LD. CIT(A) WHILE PASSIN G THE IMPUGNED ORDER AND BY THE ASSESSEE BEFORE THE BENCH. TH E HON'BLE APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCT S 88 ITR 192, HAS LAID DOWN THE PROPOSITION TO THE EFFECTS 'WHENEVER THERE ARE TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE TH AT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED' MEANING THEREBY WHEN THERE IS NO DECISION OF THE JURISDICTIONAL HIGH COURT, HOWEVER TWO DIFFERENT VIEWS OF COURTS ARE AVAILABLE ON AN ISSUE, THEN THE VI EW WHICH FAVORS THE ASSESSEE OR THE JUDGMENT WHICH FAVOURS THE ASSESSEE SHOUL D BE FOLLOWED. 10. THE CO-ORDINATE BENCH IN THE CASE OF M/S M.G.N. KHALSA HIGH SCHOOL, JALANDHAR VS. ACIT, CPV CELL-TDS, GHAZIABAD I N ITA NOS.16, 17 & 18/ASR/2019 DECIDED ON 25.07.2019 ANALYZED THE PROVISIONS OF LAW AND ALSO MADE REFERENCE TO THE DECISIONS OF THE HON'B LE GUJARAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS UOI (SUPRA ) AND ITA N0S. 130 TO 135/ASR/ 2019 (A.YS .2013-14, 2014-15 & 2015-16) DIRECTOR PUNJAB A GRICULTURAL UNI. VS ITO (TDS) 5 KARNATAKA HIGH COURT IN FATEH RAJ SINGHVI & ORS. VS UOI (SUPRA) AND HELD THAT THE PROVISIONS OF CHARGING FEE UNDER SECTION 2 34E FOR DEFAULT IN FURNISHING TDS RETURN CAME INTO OPERATION ONLY AFT ER 1 ST JUNE, 2015 WHEN THE ENABLING PROVISIONS IN THE ACT HAVE BEEN PROV IDED, BUT PRIOR TO THAT IF THERE WAS ANY DELAY IN FURNISHING OF TDS R ETURNS AND THE SAME HAVE BEEN PROCESSED BEFORE 1 ST JUNE, 2015 THEN NO LATE FEE COULD BE LEVIED. 11. EVEN ITAT, AMRITSAR BENCH IN THE CASE OF SIBIA HEALTHC ARE (P) LTD. REPORTED AS 171 TTJ 145 (ASR) CLEARLY HELD TH AT INTIMATION ISSUED U/S 200A OF THE ACT FOR DEMAND OF FEES U/S 234E W AS NOT VALID IN LAW, AS THE SAME PERTAINS TO THE PERIOD PRIOR TO 1 ST JUNE, 2015. 12 . COMING TO THE INSTANT CASE, UNDISPUTEDLY, ASSESSEE FILED ITS TDS RETURN (FORM 26Q) FOR SECOND QUARTER OF FINANCIAL YEA R 2012-13 PRIOR TO 1.6.2015 AND THE SAME WAS PROCESSED AND INTIMATION U NDER SECTION 200A WAS ISSUED VIDE ORDER/INTIMATION DATED 07/05/2014 . SECTION 200A OF THE ACT HAS BEEN AMENDED W.E.F. 1.6.2015 EMPO WERING THE ASSESSING OFFICER TO LEVY LATE FEES UNDER SECTION 234E OF T HE ACT, THEREFORE IN THE PECULIAR CIRCUMSTANCES THE ASSESSING OFFICER WHILE PROCESSING TDS STATEMENT FOR THE PERIOD PRIOR TO AND FI LED PRIOR TO 01.06.2015 WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTI ON 234E OF THE ACT. HENCE ON THE AFORESAID CONSIDERATION AND ANALYZA TION, WE ARE INCLINED TO DELETE THE LATE FEE IMPOSED BY THE AO AND AFFIRMED BY THE LD. CIT(A). RESULTANTLY THE APPEAL I.E. ITA NO. 130/ASR/2019 IS ALLOWED . ITA N0S. 130 TO 135/ASR/ 2019 (A.YS .2013-14, 2014-15 & 2015-16) DIRECTOR PUNJAB A GRICULTURAL UNI. VS ITO (TDS) 6 13. IN VIEW OF RESULT OF ITA NO. 130/ASR/2019, ITAS NO. 131/ASR/2019 TO 135/ASR/2019 FILED BY THE ASSESSEE ALSO STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.0 9.2020. SD/- SD/- ( N. K. SAINI ) (N.K.CHOUDHRY) VICE PRESIDENT JUDICIAL MEMBER DATED: 22.09.2020 GP/SR.PS. COPY OF THE ORDER FORWARDED TO: (1) APPELLANT (2) THE RESPONDENTS (3) THE CIT (A) (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER