Integrated Broadcasting Company Pvt Ltd , Hyderabad V. Income Tax Officer, TDS, Ward-1(3), Hyderabad

ITA 1829/Hyd/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1563 (ITAT-HYDERABAD)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 28-08-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 10-09-2018
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B , HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER S. NO. ITA NO. AY APPELLANT RESPONDENT 1 TO 7 1827, 1828, 1829, 1830, 1831, 1832 & 1833 /H/18 2013 - 14 & 2014 - 15 INTEGRATED BROADCASTING COMPANY PVT. LTD., SECUNDERABAD. PAN - AABCI8859F INCOME - TAX OFFICER (TDS) , WARD 1 ( 3 ), HYDERABAD ASSESSEE BY : SHRI K.A. SAI PRASAD REVENUE BY : S HRI SOLGY JOSE T. KOTTARAM DATE OF HEARING : 28 / 0 8 /201 9 DATE OF PRONOUNCEMENT : 05 / 0 9 / 201 9 O R D E R PER BENCH . : ALL THESE APPEALS FILED BY ASSESSEE ARE DIRECTED AGAINST A COMMON ORDER OF CIT(A) 8 , HYDERABAD, DATED, 25 / 06 /201 8 FOR AY S 201 3 - 14 & 201 4 - 15 . 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 FYS 2012 - 13 & 201 3 - 1 4 (Q2) RELEVANT TO AYS 2013 - 14 & 201 4 - 15 . ON VERIFICATION OF THESE STATEMENTS, THE AO NOTICED THAT THE ASSESSEE FILED ALL THESE STATEMENTS, BELATEDLY AND HENCE, RAISED A DEMAND IN ALL THE SAID FYS ON ACCOUNT OF LATE FILING LEVY U/S 234 E BY ISSUING INTIMATIONS U/S 200A. 2 ITA NO S . 1827 TO 1833 /H YD/1 8 INTEGRATED BROADCASTING COMPANY PVT. LTD., 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 SUC H 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 FIN ANCE 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 BY OB SERVING AS UNDER: ` 3. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE AR WITH REGARD TO DELAY IN FILING OF APPEALS. THE QUARTERLY E - T D S RETURNS ARE FILED ELECTRONICALLY ALONG WITH THE E - MAIL ID PARTICULARS OF THE APPE LLANT AND THE INTIMATION U/S 200A(1) IS SENT TO THE GIVEN E - MAIL ID OF THE APPELLANT. HUGE DELAY OF ABOUT 3.5 TO 4 Y EARS IN THE FILING OF APP EALS CANNOT BE JUST EXPLAINED AWAY BY THE BLOCKAGE OF E - MAIL. IT IS EVIDENT ON THE FACE OF THE REASONS GIVEN FOR T HE DELAY IN FILING OF APPEALS THAT THEY ARE CASUAL AND ROUTINE IN NATURE WITHOUT GIVING COGENT AND SUFFICIENT REASONS FOR THE HUGE DELAY. NO 'SUFFICIENT CAUSE' HAS BEEN GIVEN FOR THE HUGE DELAY IN THE FILING OF APPEALS. I AM THEREFORE, NOT SATISFIED WITH T HE APPELLANTS EXPLANATION FOR NOT PRESENTING THE APPEAL WITHIN THE PERIOD OF LIMITATION IN TERMS OF PROVISIONS OF SECTION 249(3) OF THE ACT. HENCE, THE DELAY IN FILING OF APPEALS ARE NOT CONDONED. ACCORDINGLY, THE APPEALS ARE NOT ADMITTED AT THE THRESHOLD STAGE ITSELF. 6. AGGRIEVED BY THE ORDERS OF CIT(A), THE ASSESSEE PREFERRED APPEALS BEFORE US RAISING THE FOL LOWING GROUNDS OF APPEAL, WHICH ARE COMMON IN ALL THE APPEALS UNDER CONSIDERATION , EXCEPT THE QUANTUM OF PENALTY : 1. THE ORDER OF THE LEARNED COMMISSIONE R OF INCOME TAX (AL IS NOT CORRECT EITHER ON FACTS OR IN LAW AND IN BOTH. 3 ITA NO S . 1827 TO 1833 /H YD/1 8 INTEGRATED BROADCASTING COMPANY PVT. LTD., SECBAD. 2. THE LEARNED FIRST APPELLATE AUTHORITY IS NOT JUSTIFIED IN NON - CONDONING THE DELAY AND DISMISSING THE APPEAL MERELY ON THE GROUNDS OF LIMITATION RATHER THAN MERITS 3. THE LEARN ED FIRST APPELLATE AUTHORITY, FAILED TO APPRECIATE THE REASONS FOR DELAY IN FILLING THE APPEAL. 4. THE LEARNED FIRST APPELLATE AUTHORITY IS NOT JUSTIFIED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN LEVYING FEES OF RS 43,800 U/S 234E OF IT ACT. 5. THE LEARNED FIRST APPELLATE AUTHORITY FAILED TO APPRECIATE THE LEGAL POSITION THAT PRIOR TO 01.06.2015, THE ASSESSING OFFICER HAD NO AUTHORITY TO LEVY FEES U/S 234E OF IT ACT. 6. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND OR ALTER ANY OF THE GROUNDS AT T HE TIME OF HEARING OF APPEAL . 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: 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 OF 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 4 ITA NO S . 1827 TO 1833 /H YD/1 8 INTEGRATED BROADCASTING COMPANY PVT. LTD., SECBAD. 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 AC CEPTED RULE OF CONSTRUCTION, 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 T HE 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., FYS 201 2 - 1 3 & 201 3 - 14 WERE PRIOR TO 01/06/2015. THEREFORE, RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COORDINATE B ENCH, WE SET ASIDE THE ORDER OF CIT(A) AND DIRECT THE AO TO DELETE THE FEES LEVIED U/S 234E IN ALL THE APPEALS UNDER CONSIDERATION. 8. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 5 TH SEP TEMBER, 201 9. SD/ - SD/ - ( P. MADHAVI DEVI ) (S . RIFAUR RAHMAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 5 TH SEPTEMBER, 201 9 . KV 5 ITA NO S . 1827 TO 1833 /H YD/1 8 INTEGRATED BROADCASTING COMPANY PVT. LTD., SECBAD. C OPY TO: - 1 ) I N T E G R A T E D B R O A D C A S T I N G C O M P A N Y PVT. LTD., C/O CH. PARTHASARATHY & CO., 1 - 1 - 298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, ST. NO. 1, ASHOKNAGAR, HYDERABAD 500 020. 2) IT O (TDS) , WARD 1 ( 3 ) , 4 TH FLOOR, D - BLOCK, IT TOWERS, AC GUARDS, HYDERABA D - 28 3 ) CIT(A) 8 , HYDERABAD. 4 ) CIT (TDS) , HYD. 5 ) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 6 ) GUARD FILE