MR. NITIN VISHWANATH DHEPE, PUNE V. ACIT, CPC-TDS, GAZIABAD

ITA 1982/PUN/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0704 (ITAT-PUNE)
• Duration Of Justice: 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 13-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARI KRISHAN
• Keywords: Question of law; TDS; Set aside
• Section: 234E; 201; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI R.S.SYAL, VP AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER SL. NO. ITA NO(S). NAME OF THE APPLICANT NAME OF RESPONDENT ASST. YEAR QUARTER FORM 1 - 5 1876/PUN/2019 TO 1880/PUN/2019 MR. NITEEN VISHWANATH DHEPE CHURCH ROAD, OPP. COMMISSIONER OFFICE, 1 ST FLOOR, NUCLEUS MALL, PUNE PAN: AFUPD0141E ACIT, CPC - TDS, GHAZIABAD 2013 - 14 2014 - 15 2015 - 16 2016 - 17 2017 - 18 Q3 Q1 Q1 Q2 Q1 26Q 2 6 Q 26Q 26Q 24Q 6 - 32 1968/PUN/2019 TO 1994/PUN/2019 MR. NITEEN VISHWANATH DHEPE CHURCH ROAD, OPP. COMMISSIONER OFFICE, 1 ST FLOOR, NUCLEUS MALL, PUNE PAN: AFUPD0141E ACIT, CPC - TDS, GHAZIABAD 2013 - 14 2013 - 14 2013 - 14 2013 - 14 2014 - 15 2014 - 15 2014 - 15 2014 - 15 2014 - 15 2014 - 15 2014 - 15 2015 - 16 2015 - 16 2015 - 16 2015 - 16 2015 - 16 2016 - 17 2016 - 17 2016 - 17 2016 - 17 2016 - 17 2017 - 18 2017 - 18 2017 - 18 2017 - 18 2017 - 18 2017 - 18 Q3 Q4 Q2 Q4 Q1 Q2 Q3 Q4 Q2 Q3 Q4 Q1 Q2 Q3 Q2 Q3 Q2 Q3 Q4 Q3 Q4 Q2 Q3 Q1 Q2 Q3 Q4 24Q 24Q 26Q 26Q 24Q 24Q 24Q 24Q 26Q 26Q 26Q 24Q 24Q 24Q 26Q 26Q 24Q 24Q 24Q 26Q 26Q 24Q 24Q 26Q 26Q 26Q 26Q A SSESSEE BY : SHRI HARI KRISHAN REVENUE BY : SHRI T. VIJAYA BHASKAR REDDY / DATE OF HEARING : 20 .12 .2019 / DATE OF PRONOUNCEMENT : 20 .12 .2019 2 GROUP OF ( 32 CASES) U/S.234E / ORDER PER BENCH: ALL T HESE B ATCH OF 32 APPEALS PREFERRED BY THE SAME ASSESSEE EMANATES FROM THE RESPECTIVE ORDERS OF THE LD. CIT(APPEAL) , PUNE - 10 FOR THE RESPECTIVE ASSESSMENT YEARS CAPTIONED HEREINABOVE AND AS PER THE GROUNDS OF APPEAL ON RECORD. 2. ISSUES RAISED IN ALL THE APPEALS ARE SIMILAR INVOLVING IDENTICAL FACTS, THEREFORE, WITH THE CONSENT OF BOTH THE PARTIES, WE PROCEED TO HEAR ALL THE APPEALS TOGETHER BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. AT THE VERY OUTSET, WE NOTICE THAT ALL THE APPEALS ARE TIME BARRED BY 250/ 266 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT ALONG WITH A PETITION TO CONDON E THE SAID DELAY. WE HAVE GONE THROUGH THE CONDONATION PETITION AS WELL AS THE AFFIDAVIT AND HAVE FOUND THAT REASONS EXPLAINED THEREIN ARE JUSTIFIED AND THAT THE DELAY CANNOT BE ATTRIBUTED TO THE DELIBERATE CONDUCT OF THE ASSESSEE NEITHER THROUGH INTENTION NOR THROUG H ACTION. THE REASONS FOR DELAY IN FILING THE APPEAL S LATE WERE BEYOND THE CONTROL OF THE ASSESSEE AND EVEN THE LD. DR STATED THAT HE HAS NO OBJECTION, IF THE DELAY IS CONDONED. IN VIEW OF THE MATTER, WE CONDONE THE DELAY AND PROCEED TO HEAR THE APPEAL S O N MERITS. 4. IN THESE SET OF APPEALS INTIMATION HAD BEEN ISSUED BY THE ASSESSING OFFICER U/S.200A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WHEREIN FEES PAYABLE U/S.234E OF THE ACT HAS BEEN CHARGED BY THE ASSESSING OFFICER. 3 GROUP OF ( 32 CASES) U/S.234E 5. THE LD. AR OF THE ASSESSEE SUBMITTED BEFORE US THAT IN RESPECT OF ALL THESE CASES, IT MAY BE NOTED THAT THE LEGISLATURE HAD INSERTED CLAUSE (C) TO SECTION 200A(1) OF THE ACT SPECIFICALLY W.E.F. 01.06.2015 AND THE CASE OF THE ASSESSEE BEFOR E US I S THAT IN S UCH CIRCUMSTANCES WHERE THE SAID AMENDMENT WAS INTRODUCED W.E.F 01.06.2015 AND THERE WAS NOTHING TO SUGGEST THAT THE SAID AMENDMENT WAS CLARIFICATORY OR RETROSPECTIVE IN NATURE, THEN NO SUCH LATE FEES COULD BE CHARGED U/S.234E OF THE ACT IN RESPECT OF TDS STATEMENTS WHICH WERE FILED PRIOR TO 01.06.2015. IT WAS FURTHER SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT IN ALL THESE CASES TDS STATEMENTS WERE FILED PRIOR TO 01.06.2015 AND THEREFORE, THE REVENUE AUTHORIT IES COULD NOT HAVE LEVIED LATE FEES U/S.234E OF THE ACT. 6. PER CONTRA, THE LD. DR SUBMITTED THAT IN THESE SET OF APPE ALS, THE RESPECTIVE LD. CIT(APPEAL) S HAD DISMISSED THE SE APPEALS FILED BEFORE THEM ON THE GROUND OF SUBSTANTIAL LATE FILING OF THE APPEALS AND WITHOUT GOING INTO THE MERITS OF THE CASES. THAT FURTHER THESE APPEALS WERE TIME BARRED AND THE ASSESSEE COULD NOT ESTABLISH THE REASONABLENESS FOR SUCH SUBSTANTIAL DELAY IN FILING OF THESE APPEALS BEFORE THE LD. CIT(APPEAL)S. THEREFORE, THE LD. DR SUBMITTED THAT THE MATTER MAY BE RESTORED BACK TO THE RESPECTIVE FILE S OF THE LD. CIT(APPEAL) S FOR ADJUDICATION ON MERITS. 7. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS. WE HAVE ALSO GIVEN CONSIDERABLE THOUGHT TO THE FACTS AND CIRCUMSTANCES INVOLVED IN ALL THESE CASES. IT IS OBSERVED ON PERUSAL OF SECTION 200 SUB SECTION (3) R.W.S. 206 C SUB - SECT ION (3) PROVISO THAT WHEN THE ASSESSEE HAS DEDUCTED TDS, HE HAS TO DEPOSIT THE AMOUNT IN THE GOVERNMENT ACCOUNT AND AFTER 4 GROUP OF ( 32 CASES) U/S.234E DOING THAT HE HAS TO FURNISH THE TDS STATEMENT BEFORE THE INCOME TAX AUTHORITIES WITHIN THE PRESCRIBED TIME LIMIT. IF THERE IS LATE FI LING OF THOSE TDS STATE MENTS THEN THE REVENUE AUTHORITIES MAY CHARGE LATE FILING FEES U/S.234E OF THE ACT. THAT HOWEV ER, THIS POWER THE LEGISLATURE W AS PROVIDED TO THE AUTHORITIES BY INSERTING CLAUSE (C) TO SECTION 200A(1) OF THE ACT W.E.F. 01.06.2015. THE RE ARE PLETHORA OF CASES WHICH DECIDED THIS ISSUE THAT IF TDS STATEMENTS WERE FILED PRIOR TO 01.06.2015 THEN THERE CANNOT BE ANY LEV Y OF LATE FEES U/S.2 34E OF THE ACT. THAT HOWEVER, TDS STATEMENT S FILED AFTER 01.06.2015 WOULD ATTRACT THE LATE FILING FEES AS PER SECTION 234E OF THE ACT. WE FURTHER OBSERVE THAT IN THESE INSTANT CASES BEFORE US , IN SOME OF THE CASES, TDS STATEMENTS WERE FILED PRIOR TO 01.06.2015 WHILE IN SOME OTHER CASES, THEY WERE FILED AFTER 01.06.2015. THIS IS THE POSITION ON MERITS. THAT HOWEVER, THE LD. CIT(APPEAL) S IN THEIR RESPECTIVE ORDERS HAS NOT DEALT WITH THE MERITS OF THESE CASES AND HAS DISMISSED THE APPEALS OF THE ASSESSEE ON THE GROUND THAT THERE IS SUBSTANTIAL DELAY IN FILING OF THESE APPEAL S AND ALSO FOR THE REASON THAT THE REASONABLENESS ATTRIBUTED TO THAT DELAY C OULD NOT BE ESTABLISHED BY THE ASSESSEE THEREIN . 8. WE FIND THAT THE HONBLE APEX COURT IN THE CASE OF ANIL KUMAR NEHRU VS. ACIT (2018) 103 CCH 0231 ISCC HAS HELD THAT EVEN IF THERE IS SUBSTANTIAL DELAY IN FIL ING OF APPEALS IT CAN BE CONDONED ON THE GROUND THAT IT INVOLVES A QUESTION OF LAW WHICH GOES IN TO THE ROOT OF THE MATTER. IN THESE SET OF APPEALS BEFORE US, IT PERTAINS TO A LEGAL QUESTION WHETHER LATE FEE S WOULD BE LEVIABLE ON THE ASSESSEE OR NOT DEPENDI NG UPON T HE MERITS INVOLVED IN EACH CASE . TAKING THE TOTALITY OF FACTS AND CIRCUMSTANCES INTO CONSIDERATION, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE RESPECTIVE ORDERS OF THE LD. CIT(APPEAL) S IN ALL THESE CASES AND RESTORE THEM BACK TO THEIR RESP ECTIVE FILES TO EXAMINE 5 GROUP OF ( 32 CASES) U/S.234E THE MATTER ON MERITS INVOLVING LEGAL GROUND OF SECTION 234E OF THE ACT AND ALSO FOLLOWING THE DECISION OF TH E HONBLE APEX COURT (SUPRA.), T HE LD. CIT(APPEAL) S W OULD ADJUDICATE THESE CASES IN COMPLIANCE WITH THE PRINCIPLES OF NATU RAL JUSTICE. 9. IN THE RESULT, ALL THESE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 20 TH DAY OF DEC EMBER , 201 9 . SD/ - SD/ - R.S.SYAL S.S. VISWANETHRA RAVI VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 20 TH DECE MBER , 2019 . GCVSR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) , PUNE - 10 4. THE CIT (TDS), PUNE . 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. // // TRUE COPY// / BY ORDER, / SR. PRIVATE SECRETARY , / ITAT, PUNE 6 GROUP OF ( 32 CASES) U/S.234E DATE 1 DRAFT DICTATED ON 20 . 12 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 20 .12 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER