KASHMIR DISTILLERIES PRIVATE LIMITED, JAMMU V. CPC TDS, GHAZIBAD

ITA 160/ASR/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7993 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 28-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATBIR SINGH
• Keywords: TDS; Set aside
• Section: 234E; 200A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. Nos. 159 &160/Asr/2019 Assessment Years: 2013-14 & 2014-15 M/s Kashmir Distilleries Pvt. Ltd Industrial Area, Bari Brahmna Jammu & Kashmir [PAN: AAACK 6683N] Vs. CPC TDS Ghaziabad. (Appellant) (Respondent) Appellant by : None (written submission) Respondent by: Shri. Satbir Singh, Sr. DR Date of Hearing: 12.05.2022 Date of Pronouncement: 13.06.2022 ORDER Per Dr. M. L. Meena, AM: These appeals are filed by the assessee against the order of the CIT(A)-2, Ludhiana, eve dated 05.12.2018 pertaining to the assessment year 2015-16 wherein the assessee has challenged the orders that the CIT appeals has grossly erred in confirming levy of fee under section 234E of the income tax act 1961. 2. After going through the records and hearing the learned DR, we have decided to the appeal on merits in the larger interest of justice. On perusal 2 I.T.A. Nos. 159 &160/Asr/2019 Assessment Years: 2013-14 & 2014-15 of the records, it is revealed that the appellant assessee is a private limited company, has filed its TDS return for various quarters of financial 2012-13 and the first quarter of financial year 2013-15 belatedly where the Department in the course of processing of the TDS returns imposed late fee under section 234E amounting to 163,309/- and rupees 15,200/- respectively- 3. In the written submissions, the appellant contended that as per provisions of section 200 a of the act, passed to amended with effect from 0106 2015. The decision of the landed CIT appeals holding that the statements have been processed after 01.06.2015 and consequently the fee under section 234 E is against the law. The appellant has further submitted that the landed CIT appeals has considered the fact of the data- processing under section 200 a single point of levy of fee under section 230 4E including the provisions of law and facts that assessee is officer had no authority to levy fee for the period in respect of return pertaining to the period prior to 01.06.2015. In support he placed reliance on the decision of ITAT Amritsar bench in the case of ‘Sibia Healthcare private limited vs DCIT (TDS)’, and Hon’ble Karnataka High Court in the case of “Fathehraj Singhavi and others”289 CTR 602. 4. The ITAT, Chennai Bench, in the case of ‘Smt. G Indrani Vs. DCIT (3)’, in ITA Nos. 1019,1020,1021/ Mds / 2015 clearly held that it is open to 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. Accordingly, the intimation under Section 200A as confirmed by the CIT 3 I.T.A. Nos. 159 &160/Asr/2019 Assessment Years: 2013-14 & 2014-15 (Appeals) in so far as levy of fee under Section 234E is set aside and fee levied is deleted. The relevant paras are reproduced below: - “10. It is well known principle that the fine prescribed under the Indian Penal Code has to be levied by the concerned Magistrate or Session Judge who is trying the offence punishable under the Indian Penal Code. Therefore, the contention of the Ld. Counsel that merely because the Parliamentary has used the language “he shall be liable to pay by way of fee”, the assessee has to pay the feel voluntarily and the Assessing Officer has no authority to levy fee could not be accepted. No one would come forward to pay the feel voluntarily unless there is a compulsion under the statutory provision. The Parliament welcomes the citizens to come forward and comply with the provisions of the Act by paying the prescribed fee before filing the statement under Section 200 (3) of the Act. However, if the assessee fails to pay the fee before filing the statement under Section 200 (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 200 A of the Act. In other words, before 01.06.2015, the assessing authority could pass a separate order under Section 234 E levying fee for delay in filing the statement 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 234 E of the Act even while processing the statement under Section 200 A and making adjustment. 11. In view of the above discussion, this Tribunal is of the considered opinion that the Assessing Officer has exceeded his jurisdiction in levying fee under Section 234E while processing the statement and make adjustment under Section 200A of the Act. Therefore, the impugned intimation of the lower authorities levying fee under Section 234 E of the Act cannot be sustained in law. However, it is made clear that it is open to the Assessing Officer to pass a separate order under Section 234 E of the Act levying 4 I.T.A. Nos. 159 &160/Asr/2019 Assessment Years: 2013-14 & 2014-15 fee provided the limitation for such a levy has not expired. Accordingly, the intimation under Section 200 A as confirmed by the CIT (Appeals) in so far as levy of fee under Section 234 E is set aside and fee levied is deleted. 7. That adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A of the Act before 01/06/2015. The issue is whether such a levy could be effected in the course of intimation under section 200A. The answer is clearly in negative. No other provision enabling a demand in respect of this levy has been pointed out to us by the Ld. DR and it is thus settled law that in the absence of the enabling provision under section 200A, no such levy could be effected. As intimation under section 200A, raising a demand or directing a refund to the tax diductor, can only be passed within one year from the end of the financial year within which the related TDS statement is filed, and as the related TDS statement was filed on 24.04.2013 and 22.08. 2013 for the assessment year 2013-14 and similarly, for the next assessment year i.e. 2014-15, the TDS statements were filed on 22.08 2013. Thus, in our view, such a levy could only have been made at best within 31.03.2015 2015. However, the statements been processed on 16 2016 was beyond the. Of limitation specified in the provisions to section 200 A of the act. Thus, the time has already elapsed and this defect is thus not curable even at this stage. In view of these discussions, bearing in mind entirety the facts of the case, the impugned levy of fees under section 234E is unsustainable in law. 5 I.T.A. Nos. 159 &160/Asr/2019 Assessment Years: 2013-14 & 2014-15 8. In view of above, we, accept the grievance of the assessee as justified and accordingly, we delete the impugned levy of fee under section 234E of the Act. 9. In the result, both the appeals of the assessee are allowed. Order pronounced in the open court on 13.06.2022. Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member Date: 13.06.2022 Doc* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T True Copy By Order