BRCCPL-TAIPPL-CRSSG-JV, Secunderabad V. Income Tax Officer(TDS), Ward-1(2), Hyderabad

ITA 1685/Hyd/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1565 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 28-08-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 10-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MURTHY NAIK
• Assessee Lawyers: V SRINIVAS
• Keywords: TDS; Set aside
• Section: 234E; 200A; 201; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER S. NO. ITA NO. AY APPELLANT RESPONDENT 1 TO 3 1684, 1685 & 1686/H/18 2013 - 14 , 2014 - 15 & 2015 - 16 BRCCPL - TAIPPL - CRSSG - JV, SECUNDERABAD. PAN - AAAAB 9659H DY. COMMISSIONER OF INCOME - TAX, CIRCLE 1(1), HYDERABAD. ASSESSEE BY : SHRI V. SRINIVAS REVENUE BY : S HRI MURTHY NAIK DATE OF HEARING : 28 / 0 8 /201 9 DATE OF PRONOUNCEMENT : 05 / 0 9 / 201 9 O R D E R PER S. RIFAUR RAHMAN, A.M . : ALL THESE APPEALS FILED BY ASSESSEE ARE DIRECTED AGAINST A COMMON ORDER OF CIT(A) 8 , HYDERABAD, DATED, 16 / 0 5 /201 8 FOR AY S 201 3 - 14 , 201 4 - 15 & 2015 - 16. AS IDENTICAL ISSUE IS INVOLVED IN THESE APPEALS, THE SAME WERE CLUBBED AND HEARD TOGETHER AND, THEREFORE, A COMMON ORDER IS PASSED FOR THE SAKE OF CONVENIENCE. 2. BRIEF FACTS OF THE CASE ARE, THE ASSESSEE COMPANY FILED ITS STATEMENTS IN FORM S 24Q AND 26Q FOR ALL QUARTERS FOR AYS 2013 - 14 (26Q - Q2, Q3, Q4), 201 4 - 15 (26Q Q3) AND 2015 - 16 (26Q Q1 & Q2) . ON VERIFICATION OF THESE STATEMENTS, THE AO NOTICED THAT THE ASSESSEE FI LED ALL THESE STATEMENTS, BELATEDLY AND HENCE, RAISED A DEMAND IN ALL THE SAID FYS ON ACCOUNT OF LATE FILING LEVY U/S 234E BY ISSUING INTIMATIONS U/S 200A. 2 ITA NO S . 1684 TO 1686 /H YD/1 8 BRCCPL - TAIPPL - CRSSG - JV, SECBAD. 3. AGAINST THE SAID ACTION OF A O , ASSESSEE PREFERRED APPEALS BEFORE THE CIT(A) RAISING A GROUND THAT THE PROVISIONS TO INCLUDE LATE FEE U/S 234E IN I NTIMATION U/S 200A IS NOT PERMISSIBLE UNDER LAW AND CONSEQUENTLY SUCH LEVY IS UNSUSTAINABLE IN LAW AND HENCE THE LEVY IS LIABLE TO BE DELETED. 4. BEFORE THE CIT(A), THE AR OF THE ASSESSEE CONTENDED THAT THE PROVISIONS TO INCLUDE LATE FEE U/S 234E IN THE INTIMATION U/S 200A OF THE ACT CAME INTO EFFECT ONLY THROUGH THE FINANCE ACT, 2015 W.E.F. 01/06/2015 AND, HENCE, PRIOR TO 01/06/2015 SUCH INCLUSION OF LATE FEE U/S 234E IN THE INTIMATION U/S 200A IS NOT PERMISSIBLE UNDER THE LAW. 5. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE CIT(A) DISMISSED THE APPEALS B Y OBSERVIN G THAT THE ASSESSEE FILED THE APPEALS AFTER A HUGE DELAY, FOR WHICH NO REA SONABLE AND PLAUSIBLE EXPLANATION WAS OFFERED BY THE ASSESSEE. 6. AGGRIEVED BY THE ORDERS OF CIT(A), THE ASSESSEE PREFERRED APPEALS BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL, WHICH ARE COMMON IN ALL THE APPEALS UNDER CONSIDERATION , EXCEPT THE QUANTUM OF PENALTY : 1. ON THE FACTS AND IN LAW, THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND BAD IN LAW. 2. THE LD. CIT(A) OUGHT TO HAVE CONDONED THE DELAY IN FILING THE APPEAL. 3. THE LD. CIT(A) OUGHT TO HAVE DELETED THE LATE FEE LEVIED U/S 234E OF IT ACT, 1961. 4. ANY OTHER OR GROUNDS YOUR APPELLANT MAY URGE AT THE TIME OF HEARING. 7. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S TERRA INFRA DEVELOPMENT LTD., HYDERABAD IN ITA NOS. 1876 & 1875/HYD/2017 FOR AYS 2013 - 14 AND 2014 - 15, ORDER DATED 03/10/2018 (WHEREIN BOTH THE MEMBERS ARE PARTY), WHEREIN THE COORDINATE BENCH HAS HELD AS UNDER: 3 ITA NO S . 1684 TO 1686 /H YD/1 8 BRCCPL - TAIPPL - CRSSG - JV, SECBAD. 4. WE FIND THAT THOUGH THE PROVISIONS FOR LEVY OF FEE IN CERTAIN CASES HAS BEEN BROUGHT INTO THE STATUTE BOOK W.E.F. 1.7.2012, IT HAS BEEN BROUGHT UNDER THE PURVIEW OF SECTION 200A ONLY W.E.F. 1.6.2015. THEREFORE, AS RIGHTLY HELD BY THE COORDINATE BENCH IN THE CASE OF M/S. S ONALAC PAINTINGS & COATINGS LTD (CITED SUPRA) WE HOLD THAT THE INTEREST U/S 234E CANNOT BE LEVIED IN RESPECT OF TDS RETURNS FILED PRIOR TO 1.6.2015. FOR THE SAKE OF READY REFERENCE, THE RELEVANT PARA IS REPRODUCED HEREUNDER: '10. NOW COMING TO THE MERITS O F THE CASE, WE FIND FORCE IN THE ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT PRIOR TO 01.06.2015, THERE WAS NO MANDATE, AS PER THE STATUTE, TO MAKE ANY ADJUSTMENT ON ACCOUNT OF LEVY OF FEES U/S 234E WHILE PROCESSING TDS RETURNS U/S 200A. WE HAVE TAKEN NOTE OF THE ORDER OF THE HON'BLE GUJARAT HIGH COURT HOLDING THE AMENDMENT MADE TO SECTION 200A W.E.F. 01.06.2015, GIVING POWER TO MAKE ADJUSTMENT ON ACCOUNT OF FEES U/S 234E WHILE PROCESSING RETURNS U/S 200A TO BE RETROSPECTIVE IN NATURE, STATING THAT THIS POWER GIVEN TO THE AO IS A MACHINERY PROVISION WHILE THE SUBSTANTIVE PROVISION OF THE POWER TO LEVY FEES U/S 234E WAS ALWAYS THERE ON THE STATUTE FROM 01.06.2012. BUT AT THE SAME TIME, WE NOTE THAT THE HON'BLE KARNATAKA HIGH COURT HELD THAT LEVY OF FEES U/S 234E WHILE PROCESSING RETURNS, TDS U/S 200A PRIOR TO 01.06.2015 WAS WITHOUT ANY AUTHORITY OF LAW. WITH TWO DIVERGENT VIEW OF THE HON'BLE HIGH COURTS ON THE ISSUE AND IN THE ABSENCE OF ANY DECISION BY THE JURISDICTIONAL HIGH COURT, WE CONCUR WITH THE LEARNED COUNSEL FOR THE ASSESSEE THAT AS PER THE WELL ACCEPTED RULE OF CONSTRUCTIO N, IF TWO REASONABLE CONSTRUCTIONS OF A STATUTE ARE POSSIBLE THE CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. IN VIEW OF THE SAME, RESPECTFULLY FOLLOWING THE DECISION OF THE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI (SUPRA), WE HOLD THAT THE FEES LEVIED IN ALL THE PRESENT CASES U/S 234E PRIOR TO 01.06.2015 IN THE INTIMATIONS MADE U/S 200A WAS WITHOUT AUTHORITY OF LAW AND THE SAME IS THEREFORE, DIRECTED TO BE DELETED. IN VIEW OF THE ABOVE, ALL THE APPEALS OF THE ASSESSEE STAND ALLOWED' . 5. RESPECTFULLY FOLLOWING THE SAME, ASSESSEE'S APPEALS FOR BOTH THE A.YS ARE ALLOWED. 7.1 IN THE CASE UNDER CONSIDERATION, ON PERUSAL OF RECORD, WE FIND THAT THE TDS RETURNS FILED BY THE ASSESSEE FOR THE RELEVANT PERIOD I.E., 4 ITA NO S . 1684 TO 1686 /H YD/1 8 BRCCPL - TAIPPL - CRSSG - JV, SECBAD. A YS 201 3 - 1 4 & 201 4 - 1 5 WERE PRIOR TO 01/06/2015. THEREFORE, RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COORDINATE BENCH, WE SET ASIDE THE ORDER OF CIT(A) AND DIRECT THE AO TO DELETE THE FEES LEVIED U/S 234E IN THE APPEALS IN ITA NOS. 1684 & 1685/HYD/2018 . WITH REGARD TO T DS RETURNS FILED AFTER 01/06/2015 IN ITA NO. 1686/HYD/2018 , THE FEES LEVIED U/S 234E IS APPLICABLE. ACCORDINGLY, THE GROUNDS RAISED ON THIS ISSUE IN ITA NO. 1684 & 1685/HYD/2018 ARE ALLOWED AND IN ITA NO. 1686/HYD/2018, THE GROUNDS RAISED ARE DISMISSED. 8. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN ITA NOS. 1684 & 1685/HYD/2018 ARE ALLOWED AND IN ITA NO. 1686/HYD/ 18 IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 5 TH SEPTEMBER, 201 9. SD/ - SD/ - ( P. MADHAVI DEVI ) (S . RIFAUR RAHMAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 5 TH SEPTEMBER, 201 9 . KV C OPY TO: - 1) M/S BR CCPL - TAIPPL - CRSSG - JV, 7 - 3 - 720, RASHTRAPATHI ROAD, SECUNDERABAD 500 0 03. 2) DCI T (TDS) , CIRCLE 1(1), HYDERABA D 3 ) CIT(A) 8 , HYDERABAD. 4 ) CIT (TDS) , HYD. 5 ) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 6 ) GUARD FILE