Ortin Laboratories Limited, Hyderabad V. Income Tax Officer, TDS, Ward-2(1), Hyderabad

ITA 1849/Hyd/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8412 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 11-07-2019
• Assessment Year: 2015-2016
• Appeal Filed On: 10-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 234E; 200A; 13

Judgement Text

ITA NOS 1836 AND OTHERS ORTIN LAB LTD HYDERABAD. PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NOS.1836, 1839, 1840, 1843, 1846 & 1849/HYD/201 8 (ASSESSMENT YEARS: 2013-14 TO 2015-16) M/S. ORTIN LABORATORIES LTD HYDERABAD PAN:AAACO2401L VS INCOME TAX OFFICER TDS WARD 2(1) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI K.A. SAI PRASAD FOR REVENUE : SMT. NEEJU GUPTA, DR O R D E R PER SMT. P. MADHAVI DEVI, J.M. ALL THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT (A)-8, HYDERABAD, DATED 25.6.2018 IN CONFIRMING THE LEVY OF FEES U/S 234E OF THE ACT FOR THE RESPEC TIVE QUARTERS. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE VERY SAME ISSUE HAD COME UP BEFORE THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE A.YS 2013-14 , 2014-15 AND 2015-16 AND THE TRIBUNAL HAD CONSIDERED AND DECIDED THE ISS UE IN FAVOUR OF THE ASSESSEE. A COPY OF THE ORDER OF THE TRIBUNA L IS FILED BEFORE US. 3. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE FOLLOWING DECISIONS WHICH ARE IN FAVOUR OF THE REVE NUE: DATE OF HEARING : 11.07.2019 DATE OF PRONO UNCEMENT : 17.07.2019 ITA NOS 1836 AND OTHERS ORTIN LAB LTD HYDERABAD. PAGE 2 OF 4 I) RAJESH KOURANI VS. UNION OF INDIA (2017) 83 TAXMANN.COM 137 (GUJ.) II) DR. AMRIT LAL LANGAL VS. UNION OF INDIA (2015) 62 TAXMANN.COM 310 (P&H) III) DUNDLOD SHIKSHAN SANSTHAN (2015) 63 TAXMANN.COM 243 (RAJ.) 4. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT THE COORDINATE BENCH OF THI S TRIBUNAL HAS CONSIDERED THE DECISION OF THE HON'BLE GUJARAT HIGH COURT AND ALSO THE DECISION OF THE HON'BLE KARNATAKA HIGH COU RT AND HAS FOLLOWED THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT TO HELD THE ISSUE IN FAVOUR OF THE ASSESSEE. FOR THE SAKE O F READY REFERENCE, THE RELEVANT PARAGRAPHS IN ITA NOS.1821/ HYD/2018 AND OTHERS DATED 5 TH APRIL, 2019 ARE REPRODUCED HEREUNDER: 8. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT SIMILA R ISSUE CAME UP FOR CONSIDERATION BEFORE THE COORDINATE BEN CH OF THIS TRIBUNAL IN THE CASE OF M/S. TERRA INFRA DEV. LTD HYDERABAD IN ITA NOS.1876 & 1875/HYD/2017 FOR A.YS 2013-14 AND 2014-15, ORDER DATED 3.10.2018 (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 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. SONALAC PAINTINGS & COATINGS LTD (CITED SUPRA), WE HOLD THAT THE INTEREST U/S 234E CANNOT BE LEVIED IN RESPECT OF TD S RETURNS FILED PRIOR TO 1.6.2015. FOR THE SAKE OF READY REFERENCE, THE R ELEVANT 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 ASSE SSEE THAT PRIOR TO 1.6.2015, THERE WAS NO MANDATE, AS PER THE STATUTE, TO MAKE ANY ADJUSTMENT ON ACCOUNT OF LEVY OF FEES U/S 234E WHIL E PROCESSING TDS RETURNS U/S 200A. WE HAVE TAKEN NOTE OF THE ORDER O F THE HON'BLE GUJARAT HIGH COURT HOLDING THE AMENDMENT MADE TO SE CTION 200A W.E.F. 1.6.2015, GIVING POWER TO MAKE ADJUSTMENT ON ACCOUNT OF FEES U/S 234E WHILE PROCESSING RETURNS U/S 200A TO BE RE TROSPECTIVE IN NATURE, STATING THAT THIS POWER GIVEN TO THE AO IS A MACHINERY ITA NOS 1836 AND OTHERS ORTIN LAB LTD HYDERABAD. PAGE 3 OF 4 PROVISION WHILE THE SUBSTANTIVE PROVISION OF THE PO WER TO LEVY FEES U/S 234E WAS ALWAYS THERE ON THE STATUTE FROM 1.6.2 012. 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 1.6.2015 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 CONCU R WITH THE LEARNED COUNSEL FOR THE ASSESSEE THAT AS PER THE WELL ACCEP TED RULE OF CONSTRUCTION, IF TWO REASONABLE CONSTRUCTIONS OF ST ATUTE ARE POSSIBLE, THE CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. IN VIEW OF THE SAME, RESPECTFULLY FOLLOWING THE DECISI ON OF THE KARNATAKA HIGH COURT, IN THE CASE OF FATHERAJ SINGH VI (SUPRA), WE HOLD THAT THE FEES LEVIED IN ALL THE PRESENT CASES U/S 234E PRIOR TO 1.6.2015 IN THE INTIMATIONS MADE U/S 200A WAS WITHO UT AUTHORITY OF LAW AND THE SAME IS THEREFORE, DIRECTED TO BE DELET ED. IN VIEW OF THE ABOVE, ALL THE APPEALS OF THE ASSESSEE STAND ALLOWE D. 5. RESPECTFULLY FOLLOWING THE SAME, ASSESSEES APPE ALS FOR BOTH THE A.YS ARE ALLOWED. 8.1 IN THE CASE UNDER CONSIDERATION, ON PERUSAL OF RECORD, WE FIND THAT THE TDS RETURNS FILED BY TH E ASSESSEE FOR THE RELEVANT PERIOD I.E. FINANCIAL YEA RS 2012- 13 TO 2015-16 WERE PRIOR TO 1.6.2015. THEREFORE, RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COO RDINATE BENCH, WE DIRECT THE AO TO DELETE THE FEES LEVIED U /S 234E. ACCORDINGLY, THE GROUNDS RAISED ON THIS ISSUE IN ALL THE APPEALS UNDER CONSIDERATION ARE ALLOWED. 5. SINCE THE ISSUE HAS BEEN DECIDED IN FAVOUR OF TH E ASSESSEE AFTER CONSIDERING THE DECISION OF THE HON' BLE GUJARAT HIGH COURT WHICH IS RELIED UPON BY THE LEARNED DR, WE DO NOT SEE ANY REASON TO TAKE ANY OTHER VIEW OTHER THAN WHAT I S TAKEN IN THE ASSESSEES OWN CASE. ITA NOS 1836 AND OTHERS ORTIN LAB LTD HYDERABAD. PAGE 4 OF 4 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JULY, 2019. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 17 TH JULY, 2019. VINODAN/SPS COPY TO: 1 ORTIN LABS LTD, C/O. CH. PARTHASARATHY & CO. 1-12 98/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, ST. NO.1, ASHOKNAGAR, HYDE RABAD 500020 2 ITO TDS (WARD -2) (1) 4 TH FLOOR, D BLOCK, IT TOWERS, AC GUARDS, HYDERABAD 500028 3 CIT (A)-8 HYDERABAD 4 CIT TDS HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER