Government Homeopathic Medical college, Kozhikkode V. DCIT, Ghaziabad

ITA 140/COCH/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1705 (ITAT-COCHIN)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 27-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 234E; 200A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN Before Shri George George K, JM & Shri Laxmi Prasad Sahu, AM ITA No.134/Coch/2021 : Asst.Year 2014-2015 (Q1) ITA No.135/Coch/2021 : Asst.Year 2014-2015 (Q2) ITA No.136/Coch/2021 : Asst.Year 2014-2015 (Q3) ITA No.137/Coch/2021 : Asst.Year 2014-2015 (Q4) ITA No.138/Coch/2021 : Asst.Year 2015-2016 (Q1) ITA No.139/Coch/2021 : Asst.Year 2015-2016 (Q2) ITA No.140/Coch/2021 : Asst.Year 2015-2016 (Q3) Government Homoeopathic Medical College, Karaparamba Post, Kozhikode – 673 010 PAN : AAYPL3568L. v. The Deputy Commissioner of Income-tax (TDS), CPC, Ghaziabad. (Appellant) (Respondent) Appellant by : Sri.Siddharth M.V., CA Respondent by : Smt.J.M.Jamunna Devi, Sr.DR Date of Hearing : 18.05.2022 Date of Pronouncement : 20.05.2022 O R D E R Per George George K, JM : These appeals at the instance of the assessee are directed against consolidated order of the CIT(A) dated 29.07.2021. The relevant assessment years are 2014-2015 and 2015-2016. Common issue is raised in these appeals, hence, they were heard together and are being disposed of by this consolidated order. 2. The solitary issue raised in all these appeals is whether the CIT(A) has erred in confirming the Assessing Officer’s ITA Nos.134 to 140/Coch/2021. Government Homoeopathic Medical College. 2 order u/s 200A of the I.T.Act, wherein he levied late fees u/s 234E of the I.T.Act for various quarters. 3. The brief facts of the case are as follows: The assessee is a Government Homeopathic Medical College at Karaparamba, Kozhikode. For the assessment years 2014-2015 and 2015-2016, the assessee filed TDS returns in Form No.26Q and Form No.24Q for various quarters belatedly. The Assessing Officer levied fees and interest u/s 234E r.w.s. 200A of the I.T.Act for late filing of Form 26Q and 24Q of the said quarters. 4. Aggrieved by the orders passed by the Assessing Officer, the assessee filed appeals before the first appellate authority. The CIT(A) dismissed the appeals of the assessee. The CIT(A) primarily relied on the judgment of the Hon’ble Gujarat High Court in the case of Shri Rajesh Kourani v. Union of India reported in (2017) 83 taxmann.com 137 (Gujarat). 5. Aggrieved by the order of the CIT(A), the assessee has filed these appeals before the Tribunal. The learned AR submitted that the issue raised is squarely covered in favour of the assessee by the following judicial pronouncements:- (i) The Hon’ble Kerala High Court judgment in the case of M/s.Sarala Memorial Hospital v. Union of India & The Income Tax Officer (TDS) [WP(C) No.37775 of 2018 of 18 th December, 2018] (ii) The Hon’ble Kerala High Court judgment in the case of Olari Little Flower Kuries (P.) Ltd. v. Union of India reported in 440 ITR 26 (Ker.) ITA Nos.134 to 140/Coch/2021. Government Homoeopathic Medical College. 3 (iii) The order of the Cochin Bench of the Tribunal in the case of The Head Mistress, A.V.High School, Ponnani v. The ACIT [ITA Nos.236-242/Coch/2017 dated 05 July 2018] (iv) The order of Cochin Bench of the Tribunal in the case of Little Servants of Divine Providence, Pathanamthitta v. The ITO (TDS), Alappuzha [ITA No.258/Coch/2016 dated 09 September 2016] 6. The learned Departmental Representative relied on the order of the CIT(A). 7. We have heard rival submissions and perused the material on record. The assessee has filed belatedly TDS returns for certain quarters. The relevant financial years, respective quarters, due date, date of filing of TDS returns, date of order u/s 200A of the I.T.Act and late fee levied u/s 234E of the I.T.Act are detailed below:- FY Quarter Due date Date of filing Date of order u/s 200A Late fee 2013-14 1 31.07.2013 01.04.2015 04.04.2015 3,000 2013-14 2 31.10.2013 06.04.2015 10.04.2015 3,000 2013-14 3 31.04.2014 06.04.2015 10.04.2015 3,000 2013-14 4 15.05.2014 06.04.2015 10.04.2015 16,420 2014-15 1 31.07.2014 09.04.2015 12.04.2015 7,650 2014-15 2 31.10.2014 09.04.2015 12.04.2015 6,250 2014-15 3 31.01.2015 09.04.2015 12.04.2015 1,050 Total 40,370 7.1 The Assessing Officer cannot make any adjustment other than one prescribed in section 200A of the Act. Prior to 01.06.2015, there was no enabling provision in section 200A of the Act for making adjustment in respect of statement filed by the assessee with regard to tax deducted at source by ITA Nos.134 to 140/Coch/2021. Government Homoeopathic Medical College. 4 levying fees u/s 234E of the Act. The Parliament for the first time enabled the Assessing Officer to make adjustment by levying fees u/s 234E of the Act with effect from 01.06.2015. The Hon’ble jurisdictional High Court in the case of Olari Little Flower Kuries (P.) Ltd. v. Union of India reported in (2022) 440 ITR 26 (Ker.), has held that since provision of section 200A of the I.T.Act was amended to enable computation of fee payable u/s 234E of the I.T.Act at the time of processing of return and said amendment came into effect from 01.06.2015 (in view of CBDT Circular No.19 of 2015 dated 17.11.2015) intimations issued u/s 200A of the I.T.Act dealing with fee for belated filing of TDS returns for the period prior to 01.06.2015 were invalid and were to be set aside. Therefore, going by the dictum laid down by the Hon’ble jurisdictional High Court judgment in the case of Olari Little Flower Kuries (P.) Ltd. v. Union of India (supra), the levy of late fee for the various quarters for financial years 2013-2014 and 2014-2015 cannot be sustained in order passed u/s 200A of the I.T.Act, prior to 01.06.2015. 7.2 Before concluding, it is to be mentioned that the CIT(A) had relied on the judgment of the Hon’ble Gujarat High Court in the case of Shri Rajesh Kourani v. Union of India (supra). The Hon’ble Kerala High Court in the case of M/s.Sarala Memorial Hospital v. Union of India & The ITO (TDS) (supra), has considered the judgment of the Hon’ble Gujarat High Court in the case of Shri Rajesh Kourani v. Union of India (supra) and distinguished the same. The Hon’ble Kerala High ITA Nos.134 to 140/Coch/2021. Government Homoeopathic Medical College. 5 Court had disposed of the Writ Petition in favour of the assessee, stating that there is cleavage in judicial opinion and the judgment in the case of Shri Rajesh Kourani v. Union of India (supra) has not considered CBDT Circular No.19 of 2015, which has clearly emphasized that the amendment would take effect only from 01.06.2016. Therefore, it was concluded by the Hon’ble Kerala High Court that the amendment relating to section 200A of the I.T.Act is prospective with effect from 01.06.2016. In view of the aforesaid reasoning and the judgments of the Hon’ble jurisdictional High Court, cited supra, we allow the claim of the assessee. It is ordered accordingly. 8. In the result, the appeals filed by the assessee are allowed. Order pronounced on this 20 th day of May, 2022. Sd/- (Laxmi Prasad Sahu) Sd/- (George George K) ACCOUNTANT MEMBER JUDICIAL MEMBER Bangalore; Dated : 20 th May, 2022. Devadas G* Copy to : 1. The Appellant. 2. The Respondent. 3. The CIT(A), NFAC, Delhi. 4. The CIT Cochin. 5. The DR, ITAT, Cochin. 6. Guard File. Asst.Registrar/ITAT, Cochin