Lubricare P Ltd., , Pune V. Deputy Commissioner of Income-Tax, Circle -14, Pune

ITA 21/PUN/2023

AI Insights

The case involves Lubricare Private Limited, which faced late fees under section 234E of the Income-tax Act for belated filing of TDS returns for various quarters from the assessment years 2013-14 to 2015-16. The appeals were initially dismissed by the CIT(A) due to being time-barred. However, the Income Tax Appellate Tribunal (ITAT) in Pune condoned the delay, citing the assessee's reliance on the Vivad Se Vishwas Scheme and the legal advice received, and ruled that the late fees could not be imposed for periods prior to June 1, 2015, as per the amendments to section 200A of the Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132899 (ITAT-PUNE)
• Duration Of Justice: 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-01-2023
• Assessment Year: misc
• Appeal Filed On: 01-01-2023
• Other Referred Cases: Olari Little Flower Kuries Pvt. Ltd. Vs. Union of India and others, Jiji Varghese VS. ITO(TDS) & Ors., Vijay Vishin Meghani Vs. DCIT & Anr, Concord of India Ins. Co. Limited VS Nirmala Devi, Anil Kumar Nehru and Another vs. ACIT
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; TDS; Set aside
• Section: 250; 234E; 200A

Judgement Text

आयकर अपीलीय अधिकरण “ए” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER Sl. No. ITA No(s). Name of Appellant Name of Respondent Asst. Year Quarter 1 01/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2013-14 Q2 2 02/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2013-14 Q3 3 03/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2013-14 Q2 4 04/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2013-14 Q3 5 05/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2013-14 Q4 6 06/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2013-14 Q4 7 07/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2014-15 Q2 8 08/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2014-15 Q2 9 09/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2014-15 Q4 2 ITA Nos. 01 to 21/PUN/2023 10 10/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2014-15 Q1 11 11/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2014-15 Q2 12 12/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2014-15 Q3 13 13/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2014-15 Q4 14 14/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2015-16 Q1 15 15/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2015-16 Q2 16 16/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2015-16 Q3 17 17/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2015-16 Q4 18 18/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2015-16 Q1 19 19/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2015-16 Q2 20 20/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2015-16 Q3 3 ITA Nos. 01 to 21/PUN/2023 21 21/PUN/2023 Lubricare Private Limited, Gat No. 309, Shivare, Tal.- Bhor Bhore, Pune-412206 PAN : AAACL4245M DCIT, Circle-14, Pune 2015-16 Q4 Assessee by : Smt. Deepa Khare Revenue by : Shri Ramnath P. Murkunde सुनवाई की तारीख / Date of Hearing : 23-01-2023 घोषणा की तारीख / Date of Pronouncement : 23-01-2023 आदेश / ORDER PER BENCH : This batch of 21 appeals arise from different orders passed by the CIT(A) in National Faceless Appeal Centre (NFAC), Delhi on 16-08-2021 dismissing all the appeals at the threshold on account of delay in filing the first appeals ranging from minimum of 997 days to maximum of 2197 days. The issue raised in all these appeals is charging of interest u/s.234E in respect of above mentioned Quarters of the assessment years. 2. There is delay of about 444 to 461 days in filing the appeals before the Tribunal. The assessee filed affidavits explaining the reason which led to the delay. We are satisfied with the reasons so stated and condone the delay in filing the appeals and admit the appeals for disposal on merits. 3. Briefly stated, the facts of the case are that the assessee is a Private Limited company engaged in the business of manufacture of general purpose machinery. The TDS returns for the respective quarters were filed belatedly. Based on that, the Assessing Officer (AO) levied late fees u/s.234E of the Income-tax Act, 1961 (hereinafter also called `the Act’). 4 ITA Nos. 01 to 21/PUN/2023 The assessee approached the ld. CIT(A) belatedly against the waiver of such fee. Since the appeals were time barred, the ld. CIT(A) did not condone the delay and dismissed them in limine. 4. We have heard the rival submissions and gone through the relevant material on record. It is seen that fee u/s.234E has been imposed by the AO for belated filing of the relevant statements. The assessment years involved in these 21 appeals are 2013-14, 2014-15 and 2015-16, which shows that the fee u/s.234E has been imposed for the delay in furnishing the statements for quarters prior to 01-06-2015. 5. Section 200A deals with processing of statements of tax deducted at source. Clause (c) of section 200A(1) was inserted by the Finance Act 2015 w.e.f. 01-06-2015 providing for the levy of fee u/s.234E of the Act. In that view of the matter, such fee u/s.234E can be levied only for the default committed after 01-06-2015 and not prior to that. The Hon’ble Kerala High Court in Olari Little Flower Kuries Pvt. Ltd. Vs. Union of India and others (2022) 440 ITR 26 (Kerala) has affirmed the non-imposition of fee for the period prior to 01-06-2015. Similar view has been taken in Jiji Varghese VS. ITO(TDS) & Ors. (2022) 443 ITR 267 (Ker) holding that no interest u/s 234E can be imposed for the periods of the respective A.Ys. prior to June 1, 2015. 6. Thus, it is seen that on merits the issue raised in these appeal is covered in favour of the assessee. However, the fact of the matter is that the ld. CIT(A) did not condone the delay and dismissed the appeals at threshold. The ld. AR submitted the reasons for the delay in filing the appeals belatedly before the ld. CIT(A), being, the assessee filed 5 ITA Nos. 01 to 21/PUN/2023 applications for setting the litigation under Direct Tax Vivad Se Vishwas Act, 2020 and was waiting for Form No.3. He was under the presumption that there is no need to file appeals before the ITAT once the litigation gets settled through Vivad Se Vishwas Scheme. 7. The moot point is as to whether such a long delay deserves condonation. At this stage, it is relevant to note the judgment of the Hon’ble Bombay High Court in Vijay Vishin Meghani Vs. DCIT & Anr (2017) 398 ITR 250 (Bom) holding that none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. Similar to the cases under consideration, in that case too, delay of 2984 days crept in due to improper legal advice. Relying on Concord of India Ins. Co. Limited VS Nirmala Devi (1979) 118 ITR 507 (SC), the Hon’ble jurisdictional High Court condoned the delay. 8. In yet another case in Anil Kumar Nehru and Another vs. ACIT (2017) 98 CCH 0469 Bom HC, there was a delay of 1662 days in filing the appeal. Such a delay was not condoned by the Hon’ble High Court. In further appeal, condoning the delay, the Hon’ble Supreme Court in Anil Kumar Nehru vs. ACIT (2018) 103 CCH 0231 ISCC, held that : `It is a matter of record that on the identical issue raised by the appellant in respect of earlier assessment, the appeal is pending before the High Court. In these circumstances, the High Court should not have taken such a technical view of dismissing the appeal in the instant case on the ground of delay, when it has to decide the question of law between the parties in any case in respect of earlier assessment year. For this reason we set aside the order of the High Court; condone the delay for filing the appeal and direct to decide the appeal on merits.’ 6 ITA Nos. 01 to 21/PUN/2023 9. Turning to the facts of the instant appeals, we find that the legal issue raised by the assessee is squarely covered in assessee’s favour for the aforesaid judgments of the Hon’ble Jurisdictional High Court, Kerala High Court and several orders passed by the Pune Benches of the Tribunal on this score. As against the situation in Anil Kumar Nehru (SC) in which the question of law was yet to be decided, we are confronted with a situation in which the question of law involved in the present set of appeals has already been decided in favour of the assessee. Under these circumstances, we condone the delay crept before the ld. CIT(A) and allow the appeals on merits. 10. In the result, all the appeals are allowed. Order pronounced in the open court on 23 rd January, 2023. Sd/- Sd/- (R.S. Syal) (S.S. Viswanethra Ravi) VICE PRESIDENT JUDICIAL MEMBER पुणे / Pune; दिनाांक / Dated : 23 rd January, 2023. रदव आदेश की प्रधिधलधप अग्रेधिि / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The CIT(A) concerned. 4. The Pr. CIT concerned. 5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, “ए” बेंच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गार्ड फ़ाइल / Guard File. //सत्यादपत प्रदत// True Copy// आिेशानुसार / BY ORDER, वररष्ठ दनजी सदचव / Sr. Private Secretary आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune