Mother Theresas Educational Society , Hyderabad V. Income Tax Officer, TDS, Ward-1(4), Hyderabad

ITA 1856/Hyd/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4572 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 11-02-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 11-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Assessee Lawyers: A V RAGHURAM
• Keywords: TDS

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 1 4 1855 TO 1868 /H/18 2013 - 14 TO 2016 - 17 MOTHER THERESAS EDUCATIONAL SOCIETY, HYDERABAD. PAN AAA AM5645E INCOME - TAX OFFICER (TDS) , WARD 1 ( 4 ), HYDERABAD ASSESSEE BY : SHRI A.V. RAGHURAM REVENUE BY : S HRI NILANJAN DEY DATE OF HEARING : 11 / 0 2 /201 9 DATE OF PRONOUNCEMENT : 15 / 0 2 / 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, 1 5 /0 6 /201 8 FOR AY S 201 3 - 14 TO 2016 - 17 . 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 201 2 - 13 TO 2015 - 16 RELEVANT TO AYS 2013 - 14 TO 201 6 - 1 7 . CPC RAISED LATE FILING LEVY U/S 234E FOR EACH QUARTER. THE INTIMATION OF SUCH LEVY WAS COMMUNI CATED TO THE REGISTERED EMAIL. THE ASSESSEE CLAIMS THAT IT HAS NOT RECEIVED ANY OF SUCH COMMUNICATION. ONLY ON RECEIPT OF CONSOLIDATED DEMAND NOTICE ON 15/06/2017, ASSESSEE CAME TO KNOW ABOUT THE DEMAND. IMMEDIATELY, IT HAS WRITTEN TO AO AND SUBSEQUENTLY, DOWNLOADED THE INFORMATION FROM TRACES ON 20/10/2017. 2 ITA NO. 1855 TO 1868 /H YD/1 8 MOTHER THERESAS EDUCATIONAL SOCIETY, HYD. ALL THESE COMMUNICATIONS ARE PART OF PAPER BOOK. CONSIDERING THE DATE OF COMMUNICATION AS 20/10/2017, IT FILED APPEALS BEFORE THE LD. CIT(A). 3 . AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED APPEALS BEFORE THE CIT(A). 4. THE CIT(A) DISMISSED ALL THE APPEALS IN - LIMINE ON THE GROUND THAT THERE WAS A HUGE DELAY EXCEEDING ONE YEAR IN FILING THESE APPEALS REJECTING THE CONTENTION OF THE ASSESSE E THAT AS PER PROVISO TO SECTION 200A, INTIMATION U/S 200A(1) SHALL NOT BE SENT BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FY IN WHICH THE STATEMENT IS FILED. 5. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL, WHICH ARE COMMON IN ALL THE APPEALS UNDER CONSIDERATION: 1. THE ORDER OF THE LEARNED CIT (A) DISMISSING THE APPEAL IN LIMINE IS NOT ONLY ERRONE OUS BOTH ON FACTS AND IN LAW BUT IS PERVERSE. 2. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE PROVISIONS OF SEC.200A HAS NOWHERE MENTIONED THAT IT SHALL BE SENT BY POST ONLY, THOUGH THERE IS NO PROVISION IN THE ACT FACILITATING ISSUING AND SERVING ORDERS BY ELECTRONIC MODE THOUGH THE SAME MADE FOR NOTICES IN GENERAL IS SEC.282(2) AND RULES FOR THE SAME WERE NOTIFIED ONLY FROM 2 - 12 - 2015 AND THUS ERRED IN DISMISSING THE APPEAL HOLDING THERE IS DELAY. 6. LD. AR BROUGHT TO OUR NOTICE THAT ASSESSEE HAS NOT RECEIVED ANY INTIMATION AND IT CAME TO KNOW ONLY WHEN THE CONSOLIDATED DEMAND NOTICE WAS ISSUED. IT HAS APPLIED AND DOWNLOADED STATEMENT QUARTER - WISE, WHICH IS PLACED A T PAGE 3 OF PAPER BOOK. AS PER THE PAGE 3 OF PAPER BO OK, WHICH IS THE DETAILS OF INTIMATIONS DOWNLOADED QUARTER WISE FROM FYS 2013 - 14 TO 2015 - 16 BY THE ASSESSEE ON 20 TH OCTOBER, 2017 , AND ACCORDINGLY , FILED THE APPEALS BEFORE THE CIT(A). 3 ITA NO. 1855 TO 1868 /H YD/1 8 MOTHER THERESAS EDUCATIONAL SOCIETY, HYD. 6.1 WHEN THE BENCH ASKED THE LD. DR WHETHER INTIMATION OF REGULAR STA TEMENT PROCESSING SENT ON REGISTERED MAIL, THE LD. DR FILED A STATEMENT WHICH CLEARLY INDICATES THAT CERTAIN QUARTERS INTIMATIONS WERE NOT SENT OR SENT BELATEDLY. 6.2 AT THIS JUNCTURE, WE ARE OF THE VIEW THAT THERE IS NO POINT IN SENDING THE APPEALS TO CIT(A) TO DECIDE THE SAME ON MERITS, AS THE ISSUE IN DISPUTE IS LEGAL AND SETTLED ISSUE, THEREFORE, WE ADJUDICATE ALL THESE APPEALS, ON MERITS. 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. SO NALAC 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 T AKEN 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 4 ITA NO. 1855 TO 1868 /H YD/1 8 MOTHER THERESAS EDUCATIONAL SOCIETY, HYD. 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 AUT HORITY 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 CONSTRUCTION, IF T WO 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 TH E 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. RE SPECTFULLY 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 2012 - 13 TO 201 5 - 1 6 AND 1 ST QUARTER I.E. 01/04/2015 TO 31/05/2015 WERE PRIOR TO 01/06/2015. THEREFORE, RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COORDINATE BENCH, WE DIRECT THE AO TO DELETE THE FEES LEVIED U/S 234E. ACCORDINGLY, THE GROUND S RAISED ON THIS ISSUE IN ALL THE APPEALS UNDER CONSIDERATION ARE ALLOWED. 8. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 15 TH FEBRUARY , 201 9. ( P. MADHAVI DEVI ) (S . RIFAUR RAHMAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 15 TH FEBRUARY , 201 9 KV 5 ITA NO. 1855 TO 1868 /H YD/1 8 MOTHER THERESAS EDUCATIONAL SOCIETY, HYD. C OPY TO: - 1) MOTHER THERESAS EDUCATIONAL SOCIETY, C/O S/SHRI K. VASANTKUMAR, AV RAGHURAM, P. VINOD & M. NEELIMA DEVI, ADVOCATES, 610 , BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD 500 001. 2) IT O (TDS) , WARD 1 ( 2 ) , HYDERABAD. 3 ) CIT(A) 8 , HYDERABAD. 4 ) CIT (TDS) , HYD. 5 ) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 6 ) GUARD FILE