Anil Bohra, CHENNAI V. ACIT CPC-TDS, Ghaziabad

ITA 2106/CHNY/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9601 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 06-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V THARISH
• Keywords: Retrospective amendment
• Section: 201(1); 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , , $ BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER /. I.T.A. NOS. 2100, 2101, 2102, 2103, 2104, 2105, 2106, 2107, 2108, 2109 & 2110/CHNY/2018 / ASSESSMENT YEARS : 2013-14, 2013-14, 2013-14, 2014- 15, 2014-15, 2014-15, 2014-15, 2015-16, 2015-16, 2015-1 6, 2015-16 SHRI. ANIL BOHRA, F5, NO. 1, NEW NO. 10, SEETHAMMAL COLONY, 1 ST STREET, ALWARPET, CHENNAI 600 018. [PAN: CHEAO 7432F] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL PROCESSING CELL-TDS, GHAZIABAD 201010. ( / APPELLANT) ( %&' /RESPONDENT ) ASSESSEE BY : SHRI. V. THARISH, CA REVENUE BY : SHRI. AR.V. SREENIVASAN, JCIT 0 /DATE OF HEARING : 28.11.2018 0 /DATE OF PRONOUNCEMENT : 28.11.2018 / O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER : THE ASSESSEE FILED THESE APPEALS AGAINST THE CONSOL IDATED ORDERS PASSED BY THE COMMISSIONER OF INCOME TAX (AP PEALS)-17, CHENNAI IN ITA NOS. 307 TO 317/17-18 DATED 28.05.20 18 AGAINST THE :-2-: ITA NOS.2100 TO 2110/CHNY/2018 ORDERS PASSED U/S. 200A FOR VARIOUS QUARTERS IN ASS ESSMENT YEARS 2013-14 TO 2015-16, RESPECTIVELY. 2. SHRI. ANIL BOHRA, THE ASSESSEE, CARRYING ON THE BUSINESS OF RENTING OF HIRE CARS FROM OWN CARS CUM DRIVERS AND RENTING THEM TO ESTABLISHED COMPANIES SUCH AS TCS ETC. THE ASSESSE E FILED TDS STATEMENTS FOR THE QUARTERS 2,3,4 FOR ASSESSMENT YE AR 2013-14, QUARTERS 1,2,3,4 FOR ASSESSMENT YEAR 2014-15 & QUAR TERS 1,2,3,4 FOR ASSESSMENT YEAR 2015-16, ALL BELATEDLY, BUT PRIOR T O 01.06.2015. HENCE, THE ASSESSING OFFICER IMPOSED LATE FEES U/S. 234E IN THE ORDERS PASSED FOR THE RESPECTIVE QUARTERS. AGGRIEV ED, THE ASSESSEE FILED APPEALS BEFORE THE CIT(A) AGAINST ALL THOSE O RDERS. BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT THE PROVISIONS OF SECTION 234E WERE MADE APPLICABLE FOR THE PURPOSES OF SECTION 20 0A W.E.F. 01.06.2015 ONLY AND THEREFORE, NOT APPLICABLE FOR T HE ASSESSMENT YEARS UNDER CONSIDERATION. THE ASSESSEE RELIED ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF INDHIRANI VS DCIT 41 I TR(T) 439 (CHENNAI) IN ITA NOS. 1019, 1020, 1021, 1089, 1090, 1091 & 10 92/MDS/2015. RELYING ON THE HONBLE HIGH COURT OF GUJARAT DECISI ON IN THE CASE OF RAJESH KOURANI [2017] 83 TAXMANN 137 (GUJ), THE LD. CIT(A) UPHELD THE LATE FEES LEVIED BY THE AO U/S. 234E FOR THE VA RIOUS QUARTERS. :-3-: ITA NOS.2100 TO 2110/CHNY/2018 3. AGGRIEVED AGAINST THOSE ORDERS OF THE LD. CIT(A) , THE ASSESSEE FILED ALL THESE APPEALS WITH THE FOLLOWING COMMON G ROUNDS OF APPEAL: 1. THE ORDER OF THE LD. CIT (A) - 17, CHENNAI IS C ONTRARY TO THE LAW AND FACTS OF THE CASE. 2. THE LD. CIT (A) - 17, CHENNAI ERRED IN NOT DELET ING THE FEES LEVIED UNDER SECTION 234E OF THE ACT, WHILE PROCESSING THE TDS RETURN UNDER SECTION 200A OF THE ACT. 3. THE LD. CIT (A) - 17 ERRED IN NOT FOLLOWING THE POSITION OF LAW THAT FEES UNDER SECTION 234E OF THE ACT CANNOT BE LEVIED FOR THE PERIOD PRIOR TO 01.06.2015. 4. THE LD. CIT (A) ERRED IN IGNORING THE DECISION O F THE HONBLE JURISDICTIONAL BENCH OF THE ITAT IN THE CASE OF SMT . G. INDHIRANI VS. DCIT, CPC, UTTAR PRADESH [2015] 60 TAXMANN.COM 312 (CHENNAI - TRIB.) WHEREIN IT WAS HELD THAT FEES UNDER SECTION 234E OF THE ACT CANNOT BE LEVIED FOR PERIOD PRIOR TO 01.06.2015. 5. THE LD. CIT (A) ERRED IN FOLLOWING THE DECISION OF THE HONBLE GUJARAT HIGH COURT WHICH WAS HELD AGAINST ASSESSEE IGNORING THE DECISION OF THE HONBLE KARNATAKA HIGH COURT WHICH WAS RULED IN FAVOR OF THE ASSESSEE IN FATHERAJ SINGHVI VS. UNION OF INDIA [2016] 73 TAXMANN.COM 252 (KARNATAKA). RESPECTFULLY FOLLOWIN G THE DECISION OF THE APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRO DUCTS LTD. [1973] 88 ITR 192 (SC), WHEN THERE ARE CONFLICTING DECISIO N OF VARIOUS HIGH COURTS AND IF THERE IS NO DECISION OF JURISDICTION HIGH COURT, THEN THE DECISION OF THE HIGH COURT WHICH IS IN FAVOR OF THE ASSESSEE NEEDS TO BE FOLLOWED. 6. THE LD. CIT (A) ERRED IN NOT FOLLOWING THE DECIS ION OF THE HONBLE VISHAKHAPATNAM BENCH OF THE ITAT IN THE CASE OF CAR GO HANDLING (P.) WORKERS POOL, VISAKHAPATNAM VS. DCIT [2012] 18 TAXMANN.COM 101 (VISAKHAPATNAM), WHEREIN IT WAS HELD THAT THE I TAT IS A NATIONAL TRIBUNAL AND ITS FUNCTIONING AFFECTS THE ENTIRE COU NTRY AND ALL ITS BENCHES. HENCE, THE DECISIONS OF ALL THE COORDINATE BENCHES OF THE ITAT ARE BINDING ON THE OTHER BENCHES OF ITAT. THER EFORE, THE DECISION RENDERED BY VARIOUS BENCHES OF THE ITAT IN THE FOLLOWING :-4-: ITA NOS.2100 TO 2110/CHNY/2018 CASES THAT FEES UNDER SECTION 234E OF THE ACT CANNO T BE LEVIED WHILE PROCESSING THE RETURN UNDER SECTION 200A OF THE ACT FOR THE PERIOD PRIOR TO 01.06.2015, ARE BINDING: A. GAJANAN CONSTRUCTIONS VS. DCIT [2016] 73 TAXMANN .COM 380 (PUNE - TRIB.) B. MAHARASHTRA CRICKET ASSOCIATION VS. DCIT [3F 16] 74 TAXMANN.COM 6 (PUNE - TRIB.) C. KAUR CHAND JAM VS. DCIT [2016] 75 TAXMANN.COM 11 4 (AMRITSAR - TRIB.) D. SIBIA HEALTHCARE (P.) LTD. VS. DCIT [2015] 63 TA XMANN.COM 333 (AMRITSAR - TRIB.) 7. RELIEF CLAIMED IN APPEAL: THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEAL S) 17, CHENNAI, IN RESPECT OF THE ABOVE MATTERS MAYBE SET ASIDE AND PASS SUCH ORDERS AS THE HONBLE MEMBERS OF THE BENCH, MA Y DEEM FIT ON PROPER APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LD. AR CANVASSED THE CASES ON THE LINES OF G ROUNDS OF APPEAL AND RELIED ON THE ORDERS OF THE JURISDICTION AL ITAT DECISION IN THE CASE OF INDHIRANI VS DCIT, SUPRA, AND AGRA TRIB UNAL DECISIONS IN ITA NOS. 03, 06 & 07/AG/2018 , ITA 4&8/AG/2018 AND 89 OTHERS DATED 31.05.2018. PER CONTRA, THE LD. DR RELIED ON THE DECISION OF THE LD. CIT(A) AND THE GUJARAT HIGH COURT JUDGEMENT , TO WHICH THE LD. AR INVITED OUT ATTENTION TO THE DECISIONS OF TH E AGRA BENCH OF THE TRIBUNAL, SUPRA, AND SUBMITTED THAT AFTER CONSIDERI NG THE GUJARAT HIGH COURT DECISION, THE HONBLE ITAT HAS ALLOWED ALL TH OSE APPEALS AND HENCE THE IMPUGNED APPEALS MAY BE ALLOWED. :-5-: ITA NOS.2100 TO 2110/CHNY/2018 5. WE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE RELEVANT MATERIAL. THE RELEVANT PORTION OF THE ORDER OF THE AGRA BENCH, SUPRA, IS EXTRACTED AS UNDER: 6. THE COUNSEL FOR THE ASSESSEE HAS SUBMITTED A ST ATEMENT OF TDS RETURNS (APB, PGE. 5-9) CONTENDING THAT ALL THE TDS RETURNS STATEMENTS HAS BEEN FILED ARE IN RESPECT OF THE PERIOD PRIOR T O THE DATE 01.06.2015 I.E. THE DATE FROM WHICH CLAUSE (C) TO SUB SECTION (1) OF SECTION 200A WAS INSERTED AND INCORPORATING SECTION 234E OF THE ACT, 1961. HE FURTHER SUBMITTED THAT PRIOR 01.06.2015, THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U/S 234E OF THE ACT. THE PROVISION OF SECTION 2 34E OF THE ACT IS CHARGING PROVISION I.E. SUBSTANTIVE PROVISION WHICH COULD NOT BE APPLIED RETROSPECTIVELY, UNLESS IT IS EXPRESSELY PROVIDED I N THE ACT, TO LEVY THE LATE FEE FOR ANY DELAY IN FILING THE TDS STATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. FOR THIS PURPOSE, THE APPELLANT RELY ON THE FOLLOWING DECISIONS: I) CIT VS. VATIKA TOWNSHIP PVT. LTD. (2 014) 367 ITR 466 (SC). II) SUDARSHAN GOYAL VS DCIT (TDS) ITA NO.44 2/AGR/2017. III) FATEHRAJ SINGHVI VS. UOI (2016) 289 CTR 0602 (KARN) (HC) IV) SIBIA HEALTHCARE PVT. LTD. VS. DCIT (TDS) ITA NO.90/ASR/2 015. V) SHRI KAUR CHAND JAIN VS. DCIT, ITA NO.378/ASR/2015. VI) GAJ ANAN CONSTRUCTIONS VS. DCIT (2016) 161 ITD 313 (PUNE). 7. PER CONTRA, THE LD. DR SUPPORTED THE IMPUGNED ORDER WITH THE SUPPOR T OF A BRIEF SYNOPSIS OF CASE LAWS. 8. HEARD THE RIVAL CONTENTIO N AND PERUSED THE MATERIAL RELEVANT. WE FIND THAT WHILE DECIDING THE ISSUE AGAINST THE APPELLANT ASSESSEE THE LD. CIT(A) HAS PLACED RELIAN CE ON RAJESH KAURANI VS. UNION OF INDIA, 83 TAXMANN.COM 137 (GU J.) WHEREIN IT WAS HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PR OVISION PROVIDING THE MECHANISM FOR PROCESSING A TDS STATEMENT OF DED UCTION OF TAX AT SOURCE AND FOR MAKING ADJUSTMENT. THE LD. CIT(A) HA S FURTHER HELD THAT THIS DECISION WAS DELIVERED AFTER CONSIDERING NUMEROUS ITAT AND HIGH COURT DECISIONS AND THEREFORE THIS DECISION IN RAJESH KAURANI (SUPRA), HOLDS THE FIELDS. 9. IT IS SEEN THAT PRIOR 01.06.2015, THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A FOR RAISI NG DEMAND IN RESPECT :-6-: ITA NOS.2100 TO 2110/CHNY/2018 OF LEVY OF FEE U/S 234E OF THE ACT. THE PROVISION O F SECTION 234E OF THE ACT IS CHARGING PROVISION I.E. SUBSTANTIVE PROVISIO N WHICH COULD NOT BE APPLIED RETROSPECTIVELY, UNLESS IT IS EXPRESSLY PRO VIDED IN THE ACT, TO LEVY THE LATE FEE FOR ANY DELAY IN FILING THE TDS S TATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. THE COUNSEL FOR THE ASS ESSEE HAS RIGHTLY CONTENDED THAT IN THE ABSENCE OF ENABLING PROVISION S U/S 200A OF THE ACT, SUCH LEVY OF LATE FEE IS NOT VALID RELYING ON GROUP OF SBI AND ORS. ITA NOS.03,06 AND 07/AG/2018 AND ORS 10 THE DECISIO NS IN THE CASES OF CIT VS. VATIKA TOWNSHIP PVT. LTD. (2014) 367 IT R 466 (SC), SUDARSHAN GOYAL VS DCIT (TDS) ITA NO.442/AGR/2017 AND FATEHRAJ SINGHVI VS. UOI (2016) 289 CTR 0602 (KARN) (HC). TH E DECISIONS RELIED ON BY THE LD. DR ARE DISTINGUISHABLE ON FACTS, AS T HE ISSUE INVOLVED IN THOSE CASES PERTAINS TO INTEREST U/S 201(1) AND 201 (1A) ON THE AMOUNT OF TDS WHEREAS IN THE PRESENT CASES THE ISSUE WERE PERTAINS TO LIABILITY OF LATE FEE U/S 234E OF THE ACT FOR DELAY IN FILING TDS STATEMENT WHICH WAS INSERTED FROM 01.06.2015. 10. ON SIMILAR FACTS, WE HAVE DECIDED THE SAME ISSUE IN THE ASSESSEES OWN CASE SUDERSHA N GOYAL VS. DCIT (TDS), IN ITA NO. 442/AGRA/2017 DTD. 09.04.2018 AU THORED BY ONE OF US (THE LD. J.M.). THE RELEVANT PART OF THE ORDER I S REPRODUCED AS FOLLOWS: 3. HEARD. THE LD. CIT(A), WHILE DECIDING THE MATTER AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON RAJESH KAURAN I VS. UOI, 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD TH AT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE M ECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION OF TAX AT SOURC E AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) HAS HELD THAT THIS DECI SION WAS DELIVERED AFTER CONSIDERING NUMEROUS ITAT/HIGH COURT DECISION S AND SO, THIS DECISION IN RAJESH KAURANI (SUPRA) HOLDS THE FIEL D. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN L AW. AS AGAINST RAJESH KAURANI (SUPRA), SHRI GROUP OF SBI AND OR S. ITA NOS.03,06 AND 07/AG/2018 AND ORS 11 FATEHRAJ SINGHVI AND OTHE RS VS.UOI, 73 TAXMANN.COM 252 (KER), AS ALSO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ON LY OBJECTION OF THE LD. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TAKEN INTO CONSIDERATION BY THE HONBLE GUJARAT HIG H COURT WHILE PASSING RAJESH KAURANI (SUPRA). HOWEVER, WHILE OB SERVING SO, THE LD. :-7-: ITA NOS.2100 TO 2110/CHNY/2018 CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE SE TTLED LAW THAT WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFERENT HI GH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO B E FOLLOWED. IT HAS SO BEEN HELD BY THE HONBLE SUPREME COURT IN CIT VS. VEGETABLE PRODUCTS LTD., 88 ITR 192 (SC). IT IS ALSO NOT A C ASE WHERE THE DECISION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HIGH COURT QUA THE ASSESSEE. 5. IN SHRI FATEHRAJ S INGHVI AND OTHERS (SUPRA) IT HAS BEEN HELD, INTER ALIA, AS FOLLOWS: 22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PER THE WELL ESTABLISHED PRIN CIPLES OF INTERPRETATION OF STATUTE, UNLESS IT IS EXPRESSLY P ROVIDED OR IMPLIEDLY DEMONSTRATED, ANY PROVISION OF STATUTE IS TO BE REA D AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UN DER THE CIRCUMSTANCES, WE FIND THAT SUBSTITUTION MADE BY CL AUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN BE READ AS HAVI NG PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFE CT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIM ATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPOND ENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015 . HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAI D THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESA ID VIEW WILL NOT PERMIT THE GROUP OF SBI AND ORS. ITA NOS.03,06 AND 07/AG/2018 AND ORS 12 DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST. 6. IN VIEW OF THE ABOVE, RE SPECTFULLY FOLLOWING SHRI FATEHRAJ SINGHVI AND OTHERS (SUPRA), SIBIA HEALTHCARE PVT. LTD. VS. DCIT (TDS), ORDER DATED 09.06.2015 PASSED IN I TA NO.90/ASR/2015, FOR A.Y.2013-14, BY THE AMRITSAR BE NCH OF THE TRIBUNAL, AND SHRI KAUR CHAND JAIN VS. DCIT, CPC ( TDS) GHAZIABAD, ORDER DATED 15.09.2016, IN ITA NO.378/ASR/2015, FOR A.Y. 2012-13, THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JUSTIF IED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CANCELLE D. 11. IN THE ABOVE VIEW, RESPECTFULLY FOLLOWING SHRI FATEHRAJ SINGHVI AND ORS (SUPRA), SIBIA HEALTHCARE PVT. LTD. VS. DCIT (SUPRA), SHRI KAUR CHAND JAIN VS. DCIT, (SUPRA), AND OUR OWN FINDING IN THE CASE OF SUDERSHAN GOYAL (SUPRA), WE ACCEPT THE GRIEVANCE OF THE ASSESSEES A S GENUINE. :-8-: ITA NOS.2100 TO 2110/CHNY/2018 ACCORDINGLY, THE ORDERS OF THE CIT(A) ARE REVERSED AND THE FEE SO LEVIED UNDER SECTION 234E OF THE ACT IS CANCELLED. SINCE, THE DR HAS NOT BROUGHT TO OUR NOTICE ANY DEC ISION RENDERED BY THE JURISDICTIONAL HIGH COURT, QUA THE ISSUES, RESP ECTFULLY FOLLOWING THE ABOVE DECISIONS OF THE AGRA BENCH, THE ASSESSEE S APPEALS ARE ALLOWED. 6. IN THE RESULT, THE ASSESSEES APPEALS ARE ALLOWE D. ORDERS PRONOUNCED IN THE OPEN COURT ON 28 TH NOVEMBER, 2018 AT CHENNAI. SD/- ( ) (GEORGE MATHAN) ! /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) ! /ACCOUNTANT MEMBER /CHENNAI, 5 /DATED: 28 TH NOVEMBER, 2018 JPV 0%7898 /COPY TO: 1. '/ APPELLANT 2. %&' /RESPONDENT 3. ; ) (/CIT(A) 4. ; /CIT 5. 8% /DR 6. /GF