ITO (TDS), Moradabad V. Life Insurance Corporation of India, Uttar Pradesh

ITA 1930/DEL/2014

• Counselvise Citation: 193020114 RSA 2014
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 01-10-2015
• Assessment Year: misc
• Appeal Filed On: 02-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Double taxation relief; Opportunity of being heard
• Section: 206AA; 246; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. G. C. GUPTA, HONBLE VICE PRESIDENT AND SH. O.P.KANT , A CCOUNTANT M EMBER ITA NO. 1930& 1931 /DEL./ 2014 ASSTT. YEAR : 2010 - 11 ITO (TDS) MORADABAD VS . LIFE INSURANCE CORPORATION OF INDIA, STATION ROAD, AMORHA, UTTAR PRADESH, PAN:LKNL05544E (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SUJIT KUMAR, SR. DR RESPONDENT BY : NONE ITA NO.2605& 2606/DEL./2015 ASSTT. YEAR : 2011 - 12 GODFREY PHILIPS INDIA LTD., GR. FLOOR, FOUR SQUARE HOUSE, 49, COMMUNITY CENTRE, NEW DELHI , P AN:AABCG4768K VS . ITO(TDS), INTERNATIONAL TAX - 1(1), NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ZAIN RAJA, ADV RESPONDENT BY : SH. SUJIT KUMAR, SR. DR ITA NO.709/DEL./2015 ASSTT. YEAR : 2013 - 14 ROOTS DESIGN INDIA PVT. LTD., 53, JAI APARTMENT, PLOT NO.102, IP EXTENSION, PATPARGANJ, DELHI PAN:AAFCR4813E VS . ITO (TDS), WARD - 49(3), DELHI (APPELLANT) (RESPONDENT) ITA NO.1930&1931/DEL./2014 2 APPELLANT BY : SH. MANOJ KUMAR, CA RESPONDENT BY : SH. SUJIT KUMAR, SR. DR ITA NO.710/DEL./2015 ASSTT. YEAR : 2013 - 14 STUDIO XP MANAGEMENT CONSULTANTS PVT. LTD., 53, JAI APARTMENT, PLOT NO.102, IP EXTENSION, PATPARGANJ, DELHI PAN:AAQCS6279J VS . ITO (TDS), WARD - 50(3), DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH. MANOJ KUMAR, CA RESPONDENT BY : SH. SUJIT KUMAR, SR. DR ITA NO.5097/DEL./2014 ASSTT. YEAR : 2013 - 14 SAID HASAN AND SONS, MELA GUGHAL ROAD, IDDGAH ROAD, NEAR POLICE CHOWKI, SAHARANPUR, UTTAR PRADESH, PAN:ACGFS1760B VS . DCIT, CPC - TDS, SECTOR - 3, VAISHALI, GHAZIABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ANIL JAIN, ADV. RESPONDENT BY : SH. SUJIT KUMAR, SR. DR DATE OF HEARING : 01.10 .2015 DATE O F PRONOUNCEMENT : 08 .10.2015 ORDER PER BENCH . THIS BAT CH OF SEVEN APPEALS COMPRIS ES TWO APPEALS OF THE REVENUE AND FIVE APPEALS OF THE TAX DEDUCTORS. ALL THE APPEALS ITA NO.1930&1931/DEL./2014 3 EMANATE FROM THE DIFFERENT ORDERS OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) AGAINST THE INTIMATION ISSUED U/S 200A OF THE ACT BY THE INCOME TAX OFFICER / ASSISTANT COMMISSIONER OF INCOME TAX (TAX DEDUCTED AT SOURCE ) / CENTRALISED PROCESSING CENTRE (TAX DEDUCTED AT SOURCE). SINCE THE ISSUES INVOLVED IN ALL THE APPEALS ARE RELATED TO THE INTIMATION U/S 200A OF THE ACT, ALL THE APPEALS WERE HEARD TOGETHER AND DISPOSED OFF BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. NOW , WE TAKE UP THE APPEAL OF THE REVENUE IN ITA NO. 1930 & 1931 /DEL/2104. THE GROUNDS OF THE APPEAL ARE IDENTICAL IN BOTH THE APPEALS, AND THEREFORE, THE GROUNDS OF APPEALS OF ITA NO. 1930 ARE O NLY REPRODUCED AS UNDER: 1. THE LD. CIT(APPEALS), BAREILLY HAS ERRED IN F ACTS AND LAW BY ACCEPTING NEW EVIDENCE FROM THE DEDUCTOR WITHOUT ALLOWING REASONABLE OPPORTUNITY TO THE AO IN TERMS OF RULE 46A(3) OF THE IT RULES, 1962. THE DEDUCTOR SUBMITTED BEFORE THE CIT(A) THAT HE HAS DEDUCTED AND PAID THE DUE TAX AND THAT SHORT DEDU CTION/ NON - PAYMENT IS DUE TO MISMATCH. THIS FACT WAS NOT NEITHER PRODUCED BEFORE THE AO NOR IT WAS REFLECTED ON THE ITD SYSTEM WHEN THIS ORDER U/S 201(1)/201(1A) WAS PASSED. THE CIT(A) HAS ENONIOUSLY ACCEPTED THE CLAIM OF ASSESSEE AND DIRECTED THE AO TO VE RIFY THE CLAIM BY CALLING FOR NECESSARY DOCUMENTS FOR REQUIRED VERIFICATION AND REVISE THE ORDER ACCORDINGLY AND CHARGE INTEREST ON LATE DEPOSIT IF ANY. 2. THE LD CIT(A) HAS ERRED IN DIRECTING THE AO TO CALL FOR NECESSARY DOCUMENTS FOR REQUIRED VERIFICATI ON AND REVISE THE ORDER ACCORDINGLY. THE PROCESSING OF TDS STATEMENT ARE FULLY CENTRALIZED AT CPC (TDS), VAISHALI, GHAZIABAD AND THE ITA NO.1930&1931/DEL./2014 4 AO HAS NO POWER TO REVISE THE ORDER. THE ONLY REMEDY FOR THE DEDUCTOR IS TO FILE CORRECTION STATEMENT ON - LINE AND GET THE D EMAND REDUCED THROUGH CPC (TDS). 3. THE CIT(A) BEING A QUASI - JUDICIAL BODY HAS ERRED FURTHER IN DIRECTING THE AO(TDS) TO CARRY OUT RECTIFICATIONS WITHOUT UNDERSTANDING THE PROCESS OF RECTIFICATION/ CORRECTIONS LAID DOWN BY CPC (TDS). NO PRO O F HAS BEEN SUBM ITTED BY THE DEDUCTOR BEFORE THE CIT(A) TO SHOW THAT THE NECESSARY CORRECTION STATEMENT HAVE BEEN FILED WITH CPC(TDS). BEING A PERSON FROM THE DEPARTMENT, THE CIT(A) IS REQUIRED TO UNDERSTAND ACTUAL PROCESSES LAID DOWN BY THE DEPARTMENT AND WHETHER DIRECT IONS ISSUED BY HIM ARE EXECUTABLE OR NOT. 4. BY DOING SO IN 1,2,3 ABOVE, THE CIT(A) HAS MECHANICALLY DISPOSED OFF THE APPEAL, WHILE NO IMPLEMENTATION OF HIS DIRECTION ARE POSSIBLE AT AO (TDS) END. IN CASE OF MISMATCH, THE REMEDY LIES IN FILING OF CORRECTI ON STATEMENT WHICH ARE AUTOMATICALLY PROCESSED BY THE CPC (TDS). TILL CORRECTION STATEMENT IS PROCESSED, THE AO(TDS) ORDER S TANDS, AND CANNOT BE CANCELLED. 3. THE FACTS IN BRIEF IN THE APPEALS ARE THAT QUARTERLY RETU RNS OF TAX DEDUCTED AT SOURCE ( TDS) FOR THE FINANCIAL YEAR 2009 - 10 WERE FILED BY THE BRANCH OF LIFE INSURANCE CORPORATION OF INDIA , LOCATED AT AMROH A (UTTAR PRADESH), AS DEDUCTOR. THESE RETURNS WERE PROCESSED BY THE ITO (TDS) , MORADABAD AND AN INTIMATION U/S 200A OF THE ACT WAS ISSUED ON 0 9/08/2011 RAISING A SUM PAYABLE TOWARDS SHORT DEDUCTION, SHORT PAYMENT, AND LATE PAYMENT AND INTEREST THEREON. THE DEDUCTOR FILED APPEALS BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS), BAREILLY CHALLENGING THE ITA NO.1930&1931/DEL./2014 5 SUM RAISED ON ACCOUNT OF SHORT DEDUC TION, LATE PAYMENT FEE AND INTEREST CHARGED ETC. BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS), THE DEDUCTOR CLAIMED THAT IT HAS ALREADY PAID ALL THE TAXES IN TIME AND THERE WAS NO SHORT DEDUCTION ON THE PART OF THE DEDUCTOR. THE LEARNED COMMISSI ONER OF INCOME - TAX (APPEALS) IN BOTH THE APPEALS, DIRECTED THE ITO (TDS) TO CARRY OUT NECESSARY VERIFICATION AND PASS SUITABLE ORDERS. AGAINST THE ORDERS OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS), THE REVENUE HAS PREFERRED THESE APPEALS. 4. AT TH E OUTSET OF HEARING, THE LEARNED AUTHORISED REPRESENTATIVE APPEARED ON BEHALF OF ONE THE APPELLANT IN BATCH OF CASES HEARD, BROUGHT TO OUR NOTICE THAT NO APPEAL UNDER SECTION 246A OF THE INCOME - TAX ACT WAS MAINTAINABLE BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) AGAINST THE INTIMATION ISSUED U/S 200A OF THE ACT PRIOR TO 01.07.2010 AS HELD BY TH E INCOME - TAX APPELLATE TRIBUNAL , E BENCH IN THE CASE OF ITO WARD 50(4) VS. MARUTI INSURANCE AGENCY NETWORK LTD AND OTHERS IN ITA NO. 3983 TO 3995, 3997 TO 4000, CO NO. 426, 4001 &2, 4050 TO 4052 /DEL/2012 DISPOSED OFF BY A CONSOLIDATED ORDER DATED 23.05.2014 AND PLEADED FOR TAKING SIMILAR VIEW . THE COPY OF THE DECISION WAS PROVIDED TO THE LEARNED SENIOR DEPARTMENT REPRESENTATIVE. WE HAVE ALSO GONE THROUGH THE DEC ISION. IN THE CASE OF THE DEDUCTOR IN HAND, THE INTIMATION U/S 200A HAS BEEN ITA NO.1930&1931/DEL./2014 6 ISSUED ON 09/08/2011, WHICH IS PRIOR TO 01 /07/ 2012 I.E. THE DATE FROM WHEN THE INTIMATION U/S 200A HAS BEEN MADE APPEALABLE BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) UNDER 2 46A OF THE ACT. IN VIEW OF THE FACTS, THE DECISION IS SQUARELY APPLICABLE IN PRESENT APPEALS BEFORE US. IN THE DECISION OF THE ITO WARD 50(4) VS. MARUTI INSURANCE AGENCY NETWORK LTD AND OTHERS (SUPRA), THE TRIBUNAL HAS FOLLOWED THE FINDINGS GIVEN BY THE T RIBUNAL IN THE CASE OF ACIT VS. UNITECH WIRELESS ( TAMILNADU) PVT . LTD AND OTHERS IN ITA NOS. 4028 - 4049 & 4053 & 4054 & 4057/DEL/2012 DI SPOSED OF F BY A CONSOLIDATED ORDER DATED 01ST OCTOBER, 2012 REPORTED IN 2012(10) TMI 365 - ITAT DELHI, WHICH READS AS UNDER: THE ABOVE APPEALS ARE FILED BY THE APPELLANTS U/S. 200A OF THE I.T. ACT IN THE FINANCIAL YEAR 2011 - 12 AGAINST THE COMPUTERIZED PROCESSING ORDER OF AO (TDS) WHERE TAX AND INTEREST U/S. 200A HAVE BEEN COMPUTED IN THE COMPUTER FOR SHORT DEDUCTION / SHORT P AYMENT/ LATE PAYMENT BY THE APPELLANT. THERE IS NO APPEAL PROVISION U/S. 246A OF THE I.T. ACT FOR FILING APPEALS AGAINST ORDER U/S. 200A OF THE I.T. ACT. THE APPELLANTS ARE ADVISED TO FILE NECESSARY CORRECTIONS STATEMENTS BEFORE THE AO (TDS), COORDINATE AN D COOPERATE WITH THE ASSESSING OFFICER AND RECTIFY THE ORDER U/S. 200A/154 OF THE I.T. ACT WITH THE ASSESSING OFFICER AND AFTER RECTIFICATION, PAY THE TAX AND INTEREST IF ANY, AFTER RECTIFICATION. THE AO (TDS) SHOULD GIVE APPEAL EFFECT TO THESE ORDERS WITH IN 2 MONTHS OF RECEIPT OF THE ORDER IMMEDIATELY BY ISSUING NECESSARY NOTICES U/S. 154 OF THE ACT TO THE APPELLANT AND RECTIFYING THE ORDERS AS PER LAW. IF THE RECTIFICATION IS NOT POSSIBLE IN COMPUTER, THE ASSESSING OFFICER SHOULD MANUALLY RECTIFY BY PASSI NG SUITABLE ORDER IN A ITA NO.1930&1931/DEL./2014 7 FORMAT SO THAT A MASS RECTIFICATION CAN BE COMPLETED QUICKLY. THE AO (TDS) SHOULD GIVE OPPORTUNITY OF BEING HEARD TO THE APPELLANT BEFORE RECTIFYING THESE ORDERS AND LISTENING TO THE GRIEVANCES OF THE APPELLANT. 6. IF THE OBSERVATIO N MADE IN THE IMPUGNED ORDERS ARE ANALYZED, THERE IS DIRECTION/ ADVICE BY THE LD. COMMISSIONER OF INCOME TAX (A) TO FILE CORRECT STATEMENT BEFORE THE ASSESSING OFFICER(TDS), AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN VIEW OF THE ABO VE, WE ARE OF THE CONSIDERED OPINION THAT THE REVENUE SHOULD NOT FEEL AGGRIEVED, AS THE ULTIMATE PURPOSE IS TO DO JUSTICE. EVEN OTHERWISE, NO PERSON SHOULD BE CONDEMNED UNHEARD AND THE LD. COMMISSIONER OF INCOME TAX (A) HAS MERELY REMANDED THE ISSUE BACK T O THE FILE OF ASSESSING OFFICER, THEREFORE, THERE IS NO JUSTIFICATION TO INTERFERE WITH THE ORDER, AND THE SAME IS UPHELD. HOWEVER, THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE RESPECTIVE ASSESSES. THE ASSESSES ARE AT FURTHER LIBERTY FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE THEIR CLAIM. SINCE THE ASSESSES HAVE BEEN GRANTED FAIR OPPORTUNITY, THEREFORE, THE TIME LIMIT OF COMPLETION WITHIN TWO MONTHS, AS DIRECTED BY T HE LD. COMMISSIONER OF INCOME TAX (A), IS WITHDRAWN. HOWEVER, THE ASSESSING OFFICER IS DIRECTED TO COMPLETE WITHIN REASONABLE TIME/AS SOON AS POSSIBLE. 7. FINALLY, SUBJECT TO THE ABOVE RIDER, ALL THE APPEALS OF THE REVENUE STAND DISMISSED. 5. RELYING ON THE ABOVE FINDINGS, THE TRIBUNAL IN THE CASE OF ITO, WARD 50(4) VS. MARUTI INSURANCE AGENCY NETWORK LTD. AND OTHERS (SUPRA) HAS HELD HAS UNDER: - ITA NO.1930&1931/DEL./2014 8 5. SINCE, THE ISSUE INVOLVED IN THESE CASES IS COVERED BY THE DECISION OF THE TRIBUNAL AS REPRODUCED ABOVE AND OTHERWISE ALSO, THE VIEW AS EXPRESSED BY THE BENCH IS FOUND TO BE JUST AND APPROPRIATE, THEREFORE, FOLLOWING THE SAID ORDER, WE ADOPT THE SAME VIEW AND DISMISS ALL THE APPEALS OF THE REVENUE WITH THE RIDER INDICATED IN THE PRECEDENT RELIED UPON. SINCE APP EALS OF THE REVENUE HAVE BEEN DISMISSED, THEREFORE, C . O . OF ONE OF THE ASSESSEES BECOMES INFRACTUOUS AND AS SUCH IS DISMISSED. 6 . THE ISSUE INVOLVED IN THE APPEALS IN HAND , IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO WARD 50(4 ) VS. MARUTI INSURANCE AGENCY NETWORK LTD AND OTHERS( SUPRA), FOLLOWING THE ABOVE ORDER , WE DISMISS THE APPEALS OF THE REVENUE AND DIRECT THE ITO( TDS) TO FOLLOW THE DIRECTIONS CONTAINED IN THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO WARD 50(4) VS. MARUTI INSURANCE AGENCY NETWORK LTD AND OTHERS ( SUPRA). 7 . IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. 8 . NOW WE TAKE UP THE APPEAL OF THE DEDUCTOR IN ITA NO. 2605 & 2606/DEL/2104. THE GROUNDS OF THE APPEAL ARE IDENTICAL IN BOTH THE A PPEALS, AND THEREFORE, THE GROUNDS OF APPEALS OF ITA NO. 2605 ARE ONLY REPRODUCED AS UNDER: GROUNDS I : MAINTAINABILITY OF APPEAL 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - ITA NO.1930&1931/DEL./2014 9 42, NEW DELHI ('THE CIT(A)') ERRED IN HOLDING THAT THE APPEAL FILED BEFORE CIT (A) AGAINST THE INTIMATION U/S. 200A IS NOT MAINTAINABLE U/S. 246A OF THE INCOME TAX ACT, 1961 ('THE ACT'). 3. THE APPELLANT PRAYS THAT IT IS HELD THAT THE APPEAL AGAINST INTIMATION U/S. 200A OF THE ACT IS MAINTAINABLE UNDER SECTION 246A OF THE ACT. GROUND II: NON APPLICABILITY OF SECTION 206AA 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN NOT HOLDING THAT IN CASES WHERE TAX AT SOURCE IS DEDUCTIBLE UNDER SECTION 195 OF THE ACT ON PAYMENTS MADE TO THE RESIDENTS OF FOREIGN COUNTRY WITH WHICH INDIA HAS ENTERED INTO A DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA) AND THE RATE PRESCR IBED UNDER THE DTAA IS MORE BENEFICIAL THAN THE RATE PRESCRIBED UNDER THE ACT, THEN EVEN IN ABSENCE OF PERMANENT ACCOUNT NUMBER OF THAT FOREIGN RESIDENT, TAX SHALL BE DEDUCTIBLE AT THE BENEFICIAL RATES PRESCRIBED UNDER THE DTAA AND NOT AT THE RATES PRESCRI BED UNDER SECTION 206AA. 2 . THE APPELLANT PRAYS THAT IT BE HELD THAT IN THE AFORESAID CASES, TAX IS DEDUCTIBLE SOURCE AT THE RATES PRESCRIBED UNDER DTAA AND THE INTIMATION ISSUED U/S 200A BE QUASHED. GROUND ILL: GENERAL THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER AND/OR AMEND ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL. 9 . THE FACTS IN BRIEF IN THE APPEALS ARE THAT QUARTERLY RETU RNS OF TAX DEDUCTED AT SOURCE ( TDS) FILED BY THE DEDUCTOR WERE ITA NO.1930&1931/DEL./2014 10 PROCESSED BY THE ITO ( INTERNATIONAL TAXATION) , W ARD - 1 , NEW D ELHI AND AN INTIMATION U/S 200A OF THE ACT WAS ISSUED ON 03/11/2011 IN CASE OF BOTH THE R ETURNS RAISING A SUM AS PAYABLE TOWARDS SHORT DEDUCTION AND INTEREST THEREON AS UNDER : ITA NO FINANCIAL YEAR QUARTER DATE OF FILING FORM NO. SUM PAYABLE 2605/DEL/15 2010 - 11 Q1 14TH JULY,2010 27Q RS.5,27,040 2606/DEL/15 2010 - 11 Q2 13TH OCTOBER,2010 27Q RS.4 2,07,080 10 . IN THE INTIMATIONS ISSUED, THE ITO HELD THAT THE DEDUCTOR DID NOT QUOTE THE PERMANENT ACCOUNT NUMBER ( PAN) OF THE DEDUCTEE IN THE RETURN AND THEREFORE WAS LIABLE FOR DEDUCTION OF TAX AT SOURCE(TDS) AT RATE OF 20 PER CENT AS PER THE PROVISIONS OF SECTION 206AA OF THE ACT. THE DEDUCTOR FILED AN APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 42, NEW DELHI, CHALLENGING TAX DEDUCT IO N AT THE RATE OF 20 PER CENT. PRESCRIBED U/S 206AA OF THE ACT ON PAYMENTS TO NONRESIDENTS DUE TO NON AVAILABILIT Y OF PERMANENT ACCOUNT NUMBER. BEFORE THE LEARN ED COMMISSIONER OF INCOME - TAX ( APPEALS), THE DEDUCTOR CLAIMED THAT AS PER SECTION 90(2) OF THE AC T, WHERE A TREATY HAS BEEN ENTERED INTO WITH A FOREIGN COUNTRY, THE PROVISIONS OF THE INCOME - TAX ACT SHALL APPLY TO THE EXTENT MORE BENEFICIAL TO THE NON - RESIDENT AND HENCE THE DEDUCTOR HAD CORRECTLY DEDUCTED TAX AT THE RATES PRESCRIBED UNDER DTAA WITH RE SPECTIVE COUNTRIES ON SUCH ITA NO.1930&1931/DEL./2014 11 PAYMENTS TO NON - RESIDENTS. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) DISMISSED THE APPEAL DUE TO NON - MAINTAINABILITY OF THE APPEAL U/S 246A OF THE ACT AND ADVISED THE APPELLANT TO FILE CORRECTED STATEMENT /APPLICATION U/S 154 OF THE ACT BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER WAS DIRECTED TO DISPOSE THE SAME EXPEDITIOUSLY BY PASSING A SPEAKING ORDER AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. AGAINST THE ORDER OF THE LEARNED COMMISSIONE R OF INCOME - TAX (APPEALS), THE REVENUE HAS PREFERRED THESE APPEALS . 11 . AT THE OUTSET OF HEARING, THE LEARNED AUTHORISED REPRESENTATIVE APPEARED ON BEHALF OF ONE THE APPELLANT IN BATCH OF CASES HEARD, BROUGHT TO OUR NOTICE THAT NO APPEAL UNDER SECTION 246A OF THE INCOME - TAX ACT WAS MAINTAINABLE BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) AGAINST THE INTIMATIONS ISSUED PRIOR TO 01.07.2010 AS HELD BY THE INCOME - TAX APPELLATE TRIBUNAL , E BENCH IN THE CASE OF ITO WARD 50(4) VS. MARUTI INSURANCE AGENCY NETW ORK LTD AND OTHERS IN ITA NO. 3983 TO 3995, 3997 TO 4000, C . O . NO. 426, 4001 &2, 4050 TO 4052 /DEL/2012 DISPOSED OFF BY A CONSOLIDATED ORDER DATED 23.05.2014 AND PLEADED FOR TAKING SIMILAR VIEW . THE COPY OF THE DECISION WAS PROVIDED BOTH TO THE LEARNED SE NIOR DEPARTMENT REPRESENTATIVE AND LEARNED AUTHORISED REPRESENTATIVE OF THE TAX DEDUCTOR. WE HAVE ALSO GONE THROUGH THE DECISION. IN THE CASE OF THE DEDUCTOR ITA NO.1930&1931/DEL./2014 12 IN HAND, THE INTIMATIONS U/S 200A HAVE BEEN ISSUED ON 03//11/2011, WHICH IS PRIOR TO 01.07.2012 I. E. THE DATE FROM WHEN THE INTIMATION U/S 200A HAS BEEN MADE APPEALABLE BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) UNDER 246A OF THE ACT. IN VIEW OF THE FACTS, THE DECISION IS SQUARELY APPLICABLE IN PRESENT APPEALS BEFORE US. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEAL) HAS ALREADY RELIED ON THE DECISION OF TRIBUNAL IN THE CASE OF ACIT VS. UNITECH WIRELESS ( TAMILNADU) PVT . LTD AND OTHERS IN ITA NOS. 4028 - 4049 & 4053 - 4054 & 4057 /DEL/2012 DISPOSED OF BY THE CONSOLIDATED ORDER DATED 01ST OCTOBER, 2012 REPORTED IN 2012(10)TMI 365 - ITAT DELHI, WHICH HAS BEEN FOLLOWED IN THE DECISION OF THE ITO WARD 50(4) VS. MARUTI INSURANCE AGENCY NETWORK LTD AND OTHERS( SUPRA). HENCE , WE ARE OF OPINION THAT NO INTERFERENCE IS REQUIRED IN THE ORDERS OF THE LEARN ED COMMISS IONER OF INCOME - TAX ( APPEAL). THEREFORE, WE HOLD THAT THE THERE IS NO ERROR IN FINDING OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEAL) THAT NO APPEAL IS MAINTAINABLE U/S 246A TO THE COMMISSIONER OF INCOME - TAX (APPEAL) AGAINST THE INTIMATION ISSUED U/S 2 00A OF THE ACT BY THE ITO ON 03/11/2011 IN THE CASE OF THE DEDUCTOR. ACCORDINGLY, THE FIRST GROUND RAISED IN THE APPEALS IS DISMISSED. AS THE APPEAL S HAVE ALREADY BEEN HELD AS NON MAINTAINABLE, THE SECOND GROUND ITA NO.1930&1931/DEL./2014 13 RAISED IS HELD AS INFRUCTUOUS AND DISMISSED . THE THIRD GROUND BEING GENERAL NO ADJUDICATION IS REQUIRED AND HENCE DISMISSED. 12 . IN THE RESULT, BOTH THE APPEALS OF THE DEDUCTOR ARE DISMISSED. 13 . NOW, WE TAKE UP THE APPEALS OF DEDUCTOR IN ITA NO. 709 & 710/DEL/15 & ITA NO. 5097 /DEL/14. THE EFFECT IVE GROUND IN ALL THE APPEALS IS WHETHER THE LATE FEE FOR DELAY IN FILING RETURN OF TAX DEDUCTED AT SOURCE (TDS) U/S 234E OF THE ACT CAN BE RAISED WHILE PROCESSING THE TDS STATEMENT, BY WAY OF INTIMATION U/S 200A OF THE ACT. 14 . THE FACTS IN BRIEF IN TH ESE CASES ARE THAT THE ASSESSING OFFICER (TDS) INCLUDED THE PENALTY FOR DELAY IN FILING QUARTERLY RETURN OF TDS IN TERMS OF SECTION 234E OF THE ACT WHILE PROCESSING THE RETURN AND INTIMATED TO THE DEDUCTOR IN INTIMATION ISSUED U/S 200A OF THE ACT. THE LEAR NED COMMISSIONER OF INCOME - TAX (APPEALS) HAS UPHELD THE ACTION OF THE AO IN INCLUDING THE PENALTY LEVIABLE U/S 234E OF THE ACT IN THE INTIMATION ISSUED U/S 200A OF THE ACT. AGGRIEVED THE DEDUCTORS APPELLANTS , HAVE FILED APPEAL BEFORE US. 15 . AT THE OUTSET OF HEARING, THE LEARNED AUTHORISED REPRESENTATIVE OF THE ONE OF THE APPELLANT DEDUCTOR SUBMITTED THAT THE ISSUE INVOLVED IN THE APPEALS IS COVERED BY THE DECISION OF THE INCOME - TAX APPELLATE TRIBUNAL, AMRITSAR BENCH IN ITA ITA NO.1930&1931/DEL./2014 14 NO. 90/ASR/2015 IN T HE CASE OF SIBIA HEALTHCARE (P) LTD. VS. DEPUTY COMMISSIONER OF INCOME - TAX REPORTED IN (2015) 121 DTR (ASR)(TRIB) 81, WHEREIN THE TR IBUNAL HAS HELD AS UNDER: 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSIDERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER S. 234E WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTM ENTS CONTEMPLATED UNDER S.200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER S. 246 A (A), AND, THEREFORE, THE CIT(A) OUGHT TO HAVE EXAMINED LEGALITY OF THE ADJUSTMENT MADE UNDER THIS INT IMATION IN THE LIGHT OF THE SCOPE OF THE S. 200A. LEARNED CIT(A) HAS NOT DONE SO. HE HAS JUSTIFIED THE LEVY OF FEES ON THE BASIS OF THE PROVISIONS OF S. 234E. THAT IS NOT THE ISSUE HERE. THE ISSUE IS WHETHER SUCH A LEVY COULD BE EFFECTED IN THE COURSE OF I NTIMATION UNDER S. 200 A . THE ANSWER IS CLEARLY IN NEGATIVE. NO OTHER PROVISION ENABLING A DEMAND IN RESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN ADMITTED POSITION THAT IN THE ABSENCE OF THE ENABLING PROVISION UNDER S. 200A, NO SUCH LEVY COULD BE EFFECTED .. 16 . ON THE ISSUE UNDER CONSIDERATION BEFORE US, THE ITAT CHENNAI A BENCH IN THE CASE OF SMT. G. INDHIRANI AND OTHERS VS. DCIT, IN ITA NOS.1019, 1020 AND 1021/MDS/ 2015, ITA NO. 1089/MDS/2015, ITA NO.109 0/MDS/2015, ITANO.10 91/MDS/ 2015 AND ITA NO.1092 /MDS/2015 REPORTED IN 245 ITR (TRIB) 439 (CHENNAI) HAS HELD AS UNDER: - IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS EXCEEDED HIS JURISDICTION IN LEVYING FEE UNDER SECTION 234E WHILE PROCESSING THE STATEMENT AND MAKING ADJUSTMENT UNDER ITA NO.1930&1931/DEL./2014 15 SECTION 200A OF THE ACT. THERE FORE, THE IMPUGNED INTIMATION OF THE LOWER AUTHORITIES LEVYING FEE UNDER SECTION 234E OF THE ACT CANNOT BE SUSTAINED IN LAW. HOWEVER, IT IS MADE CLEAR THAT IT IS OPEN TO THE ASSESSING OFFICER TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING F EE PROVIDED THE LIMITATION FOR SUCH A LEVY HAS NOT EXPIRED. ACCORDINGLY, THE INTIMATION UNDER SECTION 200A AS CONFIRMED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) IN SO FAR AS LEVY OF FEE UNDER SECTION 234E IS SET ASIDE AND FEE LEVIED IS DELETED. HOWEVER, THE ORDER ADJUSTMENT MADE BY THE ASSESSING OFFICER IN THE IMPUGNED INTIMATION SHALL STAND AS SUCH. 17 . WE HAVE GONE THROUGH THE ABOVE DECISION S , AND ARE OF THE VIEW THAT ISSUE INVOLVED IN THE PRESENT APPEALS IS IDENTICAL TO THE ISSUE DECIDED IN THE CASE OF SIBIA HEALTHCARE (P) LTD. (SUPRA) AND SMT. G. INDHIRANI AND OTHERS VS. DCIT(SUPRA) . THE DECISION S BEING PRECEDENT ON THE MATTER, THEREFORE, FOLLOWING THE DECISION S OF THE TRIBUNAL, WE HOLD THAT LATE FEE FOR DELAY IN FILING RETURN OF TAX DEDUCTED AT SOURCE (TDS) U/S 234E OF THE ACT CANNOT BE RAISED WHILE PROCESSING THE TDS STATEMENT, BY WAY OF INTIMATION U/S 200A OF THE ACT . THUS, THE INTIMATION S ISSUED BY THE ASSESS ING OFFICER U/S 200A OF THE ACT ARE SET ASIDE TO THE EXTENT OF LEVY OF FEE U/S 234E OF THE ACT AND LEVIED FEE IS DELETED. HOWEVER, THE OTHER ADJUSTMENT MADE BY THE ASSESSING OFFICER IN IMPUGNED INTIMATION S SHALL REMAIN AS SUCH. IT IS CLARIFIED HERE THAT IF LIMITATION FOR LEVY OF PENALTY U/S 234E HAS NOT EXPIRED, IT IS OPEN ITA NO.1930&1931/DEL./2014 16 FOR THE ASSESSING OFFICER TO PASS A SEPARATE ORDER FOR LEVY OF PENALTY U/S 234E OF THE ACT. 18 . IN THE RESULT, THE APPEALS FILED BY THE APPELLANT DEDUCTORS ARE ALLOWED. ORDER PRONOUNCE D IN THE COURT ON 08 / 10 /2015. - SD/ - - SD/ - (G.C. GUPTA) ( O.P.KANT ) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 08 / 10/2015 *AJAY* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT DELHI BENCH, NEW DELHI