Gautam Bodhak , Howrah V. ACIT, CPC (TDS), Ghaziabad, Ghaziabad

ITA 1818/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7465 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 24-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER JCITSRDR
• Keywords: Retrospective amendment; TDS

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1818 - 1821 / KOL / 20 18 ASSESSMENT YEAR :2014-14 (Q-1TO Q4) GAUTAM BODHAK ICHAPUR ROAD, DASNAGAR, HOWRAH-711104 [ PAN NO. ADYPB 6059 K ] V/S . ACIT, CENTRALIZED PROCESSING CELL-TDS, GHAZIABAD, U.P. 201010 VAISHALI /APPELLANT .. / RESPONDENT /BY ASSESSEE NONE /BY REVENUE SHRI SHANKAR HALDER, JCIT, SR-DR /DATE OF HEARING 18-04-2019 /DATE OF PRONOUNCEMENT 30-04-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE ASSESSEES FOUR APPEAL(S) FOR ASSESSMENT YEAR 2014-15 (Q 1 TO Q 4) ARISE AGAINST THE COMMISSIONER OF INCOME TAX ( APPEALS)-14 KOLKATAS IDENTICAL ORDER(S) ALL DATED 20.06.2018 PASSED IN C ASE NO. 10580, 10575,10578,10582/CIT(A)-14/CIR-46/2016-17, AFFIRMI NG THE ASSESSING OFFICERS ACTION INVOLVING LATE FEE OF 15,180, 44,730/-, 38,200/- & 14,200/-; RESPECTIVELY INVOLVING PROCEEDINGS U/S 234E OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY S UPPORTS BOTH THE LOWER AUTHORITIES ACTION IMPOSING IMPUGNED LATE FEE PERTAINING TO ALL THE FOUR QUARTERS IN ISSUE. WE FIND THAT IN THIS BACKDROP OF FACTS THAT THE REVENUES ACTION UNDER CHALLENGE IMPOSING THE IMPUGNED LATE F EE DOES NOT DESERVE TO BE CONCURRENT WITH. THIS TRIBUNALS CO-ORDINATE BENCH S DECISION IN SUDARSHAN GOYAL VS. DCIT (TDS) IN ITA NO.442/AGRA/2017 DECIDED ON 09.04.2018 TAKES ITA NO.1818-1821/KOL/2018 A.Y. 2014 -15 Q1-Q4 GAUTAM BODHAK VS. ACIT, CPC TDS PAGE 2 INTO CONSIDERATION CONTRARY VIEWS OF VARIOUS HON'BL E HIGH COURTS TO HOLD THAT THAT THE STATUTORY PROVISION IN ISSUE DOES NOT PRES CRIBE FOR SUCH A LATE FEE COMPUTATION FOR THE TIME PERIOD PRIOR TO 01.06.2015 AS UNDER:- 2. THE ISSUE INVOLVED IN THIS APPEAL IS AS TO WHET HER LATE FILING FEE U/S 234E OF THE IT ACT HAS RIGHTLY BEEN CHARGED IN THE INTIMATI ON DATED 10.11.2013 ISSUED U/S. 200A OF THE ACT WHILE PROCESSING THE TDS RETUR NS/STATEMENT, THE ENABLING CLAUSE (C) HAVING BEEN INSERTED IN THE SECTION W.E. F. 01.06.2015. BEFORE 01.06.2015, THERE 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 PRIOR T O 01.06.2015, NO LATE FEE COULD BE LEVIED IN THE INTIMATION ISSUED U/S 200A O F THE ACT. 3. HEARD. THE ID. CIT(A), WHILE DECIDING THE MATTER AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON 'RAJESH KAURANI VS. UOL', 83 TAX MANN.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 ID. C IT(A) HAS HELD THAT THIS DECISION WAS I.T.A NO. 442/AGRA/2017 & S.A. NO.01/A GRA/2018 DELIVERED AFTER CONSIDERING NUMEROUS 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 ID. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRI FATEHRAJ SI NGHVI AND OTHERS VS.UOI', 73 TAXMANN.COM 252 (KER), AS ALSO ADMITTED BY THE ID. CIT(A) HIMSELF, DECIDES THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ONLY OBJEC TION OF THE ID. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BE EN TAKEN INTO CONSIDERATION BY THE HON'BLE GUJARAT HIGH WHILE PASSING ' RAJESH KAURANI ' (SUPRA). HOWEVER, WHILE OBSERVING SO, THE ID. CIT(A) HAS FAI LED TO TAKE INTO CONSIDERATION THE SETTLED LAW THAT WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFERENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED. IT HAS SO BEEN HELD BY THE HO N'BLE SUPREME COURT IN ' CIT VS. VEGETABLE PRODUCTS LTD. ', 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DECISION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HIGH COURT QUA THE ASSESSEE. 5. IN 'SHRI FATEHRAJ SINGHVI 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, I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY PROVISION OF STATUTE IS TO BE REA D AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UN DER THE CIRCUMSTANCES, WE FIND THAT SUBSTITUTION MADE BY CL AUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN BE READ AS HAVI NG PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFE CT, RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIM ATION FOR THE PAYMENT OF LEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPOND ENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015 . HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAI D THE FEE AFTER ITA NO.1818-1821/KOL/2018 A.Y. 2014 -15 Q1-Q4 GAUTAM BODHAK VS. ACIT, CPC TDS PAGE 3 INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESA ID VIEW WILL NOT PERMIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNL ESS HE HAS MADE PAYMENT UNDER PROTEST.' 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING 'SH RI FATEHRAJ SINGHVI 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 CHAND JAIN VS . DCIT, CPC (TDS) GHAZIABAD', ORDER DATED 15.09.2016, IN ITA NO.378/A SR/2015, FOR A.Y. 2012- 13, I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JUSTIFIED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CANCELLED. 3. WE ADOPT THE ABOVE DISCUSSION MUTATIS MUTANDIS TO REVERSE BOTH THE LOWER AUTHORITIES IDENTICAL ACTION IMPOSING THE IM PUGNED SEC. 234E LATE FEE AS NOT SUSTAINABLE. THE SAME IS DIRECTED TO BE DELETED . 4. THIS FOUR ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 30/04/2019 SD/- SD/- ( ) (( ) (DR.A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S )- 30 / 04 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-GAUTAM BODHAK ICHAPUR ROAD, DASNAGAR, HOW RAH-711104 2. /REVENUE-ACIT, CENTRALIZED PROCESSING CELL, TDS, GH AZIABAD, U.P 201010 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ 4,