Prognosys Electro Mechanical Services Private Limited , Hyderabad V. Income Tax Officer(TDS), Ward-2(1), Hyderabad

ITA 1926/Hyd/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9448 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 26-03-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 19-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN KATTA
• Assessee Lawyers: K A SAI PRASAD
• 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 6 1821 TO 1826/H/ 2018 2013 - 14 & 201 4 - 1 5 YH REDDY CONSTRUCTIONS, SECUNDERABAD. PAN AAAFY8091K INCOME - TAX OFFICER (TDS) , WARD 2 ( 4 ), HYDERABAD 7 TO 16 1834, 1835, 1837, 1838, 1841, 1842, 1844, 1845, 1847, 1848/H/18 2013 - 14 TO 2015 - 16 ORTIN LABORATORIES LTD., HYDERABAD. PAN AAACO 2401 L INCOME - TAX OFFICER (TDS), WARD 2 ( 1 ), HYDERABAD 17 TO 22 1926 TO 1931/HYD/ 2018 2014 - 15 TO 2015 - 16 PROGNOSYS ELECTRO MECHANICAL SERVICES PVT. LTD., HYDERABAD. PAN AADCP 9293N INCOME - TAX OFFICER (TDS), WARD 2 ( 1 ), HYDERABAD 23 TO 27 1945 TO 1948/H/18 2014 - 15 SPHINX ENGINEERS PVT. LTD., HYDERABAD. PAN AA1CS3820 P INCOME - TAX OFFICER (TDS), WARD 2 ( 2 ), HYDERABAD ASSESSEE BY : SHRI K.A. SAI PRASAD REVENUE BY : S HRI KIRAN KATTA DATE OF HEARING : 26 / 0 3 /201 9 DATE OF PRONOUNCEMENT : 05 / 0 4 / 201 9 O R D E R PER BENCH:` ALL THESE APPEALS FILED BY ASSESSEE S ARE DIRECTED AGAINST THE ORDER S OF CIT(A) 8 , HYDERABAD, ALL DATED, 2 5 /0 6 /201 8 FOR AY S 201 3 - 2 ITA NO S . 1821/HYD/2018 AND OTHERS . YH REDDY CONSTRUCTIONS AND OTHERS 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 . ON PERUSAL OF RECORD, WE FIND THAT THERE WAS A DELAY OF 5 TO 15 DAYS IN FILING ALL THESE APPEALS BEFORE US AND THE LD. AR OF THE ASSESSEES, WHO IS REPRESENTING THEM, FILED AN AFFIDAVIT WHEREIN HE AFFIRMED THAT AT THE RELEVANT POINT OF TIME, HIS FATHER WHO WAS 70 YEAR S OLD HAD TO UNDERGO CATARACT SURGERY, DUE TO WHICH, THE DELAY OCCURRED IN FILING THESE APPEALS. SINCE THE DELAY WAS DUE TO FAILURE ON THE PART OF AR, FOR WHICH, HE HAS ACKNOWLEDGED THE SAME BY FILING AFFIDAVIT. AS THE ASSESSEE WAS PREVENTED BY SUFFICIENT REASON FOR FILING THE APPEALS BELATEDLY, WE CONDONE THE SAME AND ADMIT THE APPEALS FOR ADJUDICATION. 3. BRIEF FACTS OF THE CASE ARE, ALL THE SE ASSESSEE COMPAN IES FILED ITS STATEMENTS IN FORM S 24Q AND 26Q FOR ALL QUARTERS FOR FYS 201 2 - 13 TO 201 4 - 1 5 RELEVANT TO AYS 2013 - 14 TO 201 5 - 1 6 . CPC RAISED LATE FILING LEVY U/S 234E FOR EACH QUARTER. 4 . AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED APPEALS BEFORE THE CIT(A). 5 . 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 ASSESSEE THAT AS PER PROVISO TO SECTION 200A, INTIMATION U/S 200A(1) SHALL NOT BE SENT BEFOR E THE EXPIRY OF ONE YEAR FROM THE END OF THE FY IN WHICH THE STATEMENT IS FILED , REJECTING THE SUBMISSIONS OF THE ASSESSEES THAT THE APPEALS COULD NOT BE FILED WITHIN THE DUE DATE ON ACCOUNT OF BLOCKAGE OF E - MAIL IN THE SPAM FOLDER AND THE SAME COULD NOT B E NOTICED BY THE ACCOUNTS DEPARTMENT OF THE COMPANY AND THE COMPANY CAME TO KNOW THE DEMAND OUTSTANDING ONLY ON RECEIPT OF COMMUNICATION OF DEMAND 3 ITA NO S . 1821/HYD/2018 AND OTHERS . YH REDDY CONSTRUCTIONS AND OTHERS FROM THE INCOME TAX DEPARTMENT AND THEREAFTER ASSESSEES APPROACHED THE TAX CONSULTANT FOR FILING APPEALS. 6 . AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE S ARE IN APPEAL S BEFORE US CONTENDING , IN THE PRELIMINARY GROUNDS , THAT THE CIT(A) IS NOT JUSTIFIED IN NON - CONDONING THE DELAY AND DISMISSING THE APPEAL MERELY ON THE GROUNDS OF LIMITATION RATHER THAN MERITS. 7 . 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. 8 . 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/20 17 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. TH EREFORE, 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 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 4 ITA NO S . 1821/HYD/2018 AND OTHERS . YH REDDY CONSTRUCTIONS AND OTHERS 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 CONSTRUCTION, IF TWO REASON ABLE 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 LE VIED 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. RESPECTFULL Y FOLLOWING THE SAME, ASSESSEE'S APPEALS 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 THE ASSESSEE FOR THE RELEVANT PERIOD I.E., FYS 2012 - 13 TO 201 5 - 1 6 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. 9 . IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE S ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 5 TH APRIL , 201 9. SD/ - SD/ - ( P. MADHAVI DEVI ) (S . RIFAUR RAHMAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 5 TH APRIL , 201 9 KV 5 ITA NO S . 1821/HYD/2018 AND OTHERS . YH REDDY CONSTRUCTIONS AND OTHERS C OPY TO: - 1 YH REDDY CONSTRUCTIONS, SECUNDERABAD C/O CH. PARTHASARATHY & CO., 1 - 1 - 298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, ST. NO. 1, ASHOKNAGAR, HYDERABAD 500 020. 2 ORTIN LABORATORIES LTD., HYDERABAD 3 PROGNOSYS ELECTRO MECHANICAL SERVICES PVT. LTD., HYD. 4 SPHINX ENGINEERS PVT. LTD., HYD. 5 ITO, TDS, WARD 2(4), 4 TH FLOOR, D - BLOCK, IT TOWERS, AC GUARDS, HYDERABAD. 6 ITO, TDS, WARD 2(1)/2(2), HYDERABAD 7 CIT(A) 8, HYDERABAD 8 CIT(TDS) HYDERABAD 9 THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD 10 GUARD FILE