Shiv Shakti Specific Family Trust, Ahmedabad V. The Dy.CIT, TPC,CPC(TDS), Gaziabad

ITA 2282/AHD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94523 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 03-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R D SHAH

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO.2282 AND 2283/AHD/2015 / ASSTT. YEAR: 2013-2014 SHIV SHAKTI SPECIFIC FAMILY TRUST PROP;. NIRAV LAMINATION 146 TO 149 MAHALAXMI IND. ESTATE SANAND VIRAMGAM HIGHWAY DIST. AHMEDABAD 382 110. TAN: AHMS 08596 A VS DCIT, CPC, TDS GHAZIABAD 201 010. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI R.D.SHAH REVENUE BY : SMT.SMITI SAMANT, SR.DR ! / DATE OF HEARING : 22/09/2015 '#$ ! / DATE OF PRONOUNCEMENT: 14/10/2015 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTAN CE OF THE ASSESSEE AGAINST ORDER OF THE LD.CIT(A)-8 DATED 01. 5.2015 PASSED FOR THE ASSTT.YEAR 2013-14. 2. THE LD.COUNSEL FOR THE ASSESSEE HAS POINTED OUT THAT THERE WAS A DELAY OF 35 DAYS IN FILING OF APPEAL BEFORE HE CIT| (A). THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY. BUT THE LD.FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPLICATION B Y OBSERVING THAT THE ITA NO.2282/AHD/2015 (2 APPEALS) 2 ASSESSEE FAILED TO SUBMIT THE TDS RETURN IN TIME, A ND THEREAFTER, DID NOT CHALLENGE THE ORDER OF THE DCIT, CPC, TDS IN TIME. IT SUGGESTS THAT ASSESSEE IS A NEGLIGENT ENTITY. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT IN ORDE R TO EXPLAIN THE DELAY, IT WAS CONTENDED BY THE ASSESSEE THAT THE PAPERS WE RE HANDED OVER TO THE CLERK FOR SUBMITTING THE APPEAL. BUT DUE TO OV ERSIGHT, HE DID NOT GO TO THE OFFICE OF THE CIT(A) FOR SUBMITTING THE PAPE RS. WHEN IT CAME TO THE NOTICE OF THE MANAGEMENT, THE APPEALS WERE FILE D IMMEDIATELY. AFTER TAKING INTO CONSIDERATION THE EXPLANATION OF THE ASSESSEE, WE DO NOT SEE ANY REASON THAT THE ASSESSEE WOULD GAIN ANY THING BY MAKING ITS APPEAL TIME BARRED. THERE COULD NOT BE ANY MALA FIDE INTENTION. THE DELAY HAD BEEN CAUSED ON ACCOUNT OF HUMAN ERROR. T HEREFORE, WE CONDONE THE DELAY AND PROCEED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERIT. THE ASSESSEE HAS TAKEN SIX GROUNDS OF APPEA L IN ITA NO.2282/AHD/2015 AND FIVE GROUNDS IN ITA NO.2283/AH D/2007. THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS ANY GROUND OF APPEAL EXCEPT THE LEVY OF LATE FEE AMOUNTING TO RS.10,400/ - AND RS.6,600/- UNDER SECTION 234E OF THE INCOME TAX ACT, IN ITA NO .2282 AND 2283/AHD/2015 RESPECTIVELY, AND CHARGING OF INTERES T UNDER SECTION 220(2) OF RS.104/- AND RS.2,936/- WHICH HAS BEEN CH ARGED ON NON- PAYMENT OF THESE FEES. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WA S SUPPOSED TO SUBMIT TDS RETURN, BUT, IT REVEALED IN F.Y.2012-13 THAT IT HAS NOT SUBMITTED THE RETURN IN TIME FOR QUARTER-3 AND 4. THESE RETURNS WERE SUBMITTED ON 24.3.2015. THE LD.DCIT, CPC, TDS HAS IMPOSED LATE FILING FEE UNDER SECTION 234E OF RS.10,400/- FOR THE QUART ER-3 AND RS.6,600/- FOR THE QUARTER NO.4. THE LD.FIRST APPELLATE AUTHO RITY HAS UPHELD THE LEVY OF FEES BY DISMISSING THE APPEAL OF THE ASSESS EE BEING TIME BARRED. ITA NO.2282/AHD/2015 (2 APPEALS) 3 SINCE, THE LD.FIRST APPELLATE AUTHORITY HAS NOT ADJ UDICATED THE ISSUE ON MERIT, THEREFORE, IN NORMAL CIRCUMSTANCES, WE OUGHT TO HAVE SET ASIDE THE ISSUE TO THE FILE OF THE CIT(A), BUT ALONG WITH THESE TWO APPEALS, WE HAVE HEARD SIX MORE APPEALS ON IDENTICAL ISSUES. T HE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE DECISION OF THE ITAT, AMRIS TAR BENCH IN THE CASE OF SIBIA HEALTHCARE PVT. LTD. VS. DCIT, ITA NO ,.90/ASR/2015, WHICH HAS BEEN FOLLOWED BY THE ITAT, AHMEDABAD BENCH IN T HE CASE OF INDIAN OVERSEAS BANK VS. DCIT, GHAZIABAD IN ITA NO.3271/AH D/2014. THE TRIBUNAL HAS HELD THAT WHILE PROCESSING THE TDS RET URN UNDER SECTION 200A, THE AO WAS NOT AUTHORIZED TO MAKE ADJUSTMENT BY RAISING THE DEMAND UNDER SECTION 234E ALSO. THE DISCUSSIONS MA DE BY THE TRIBUNAL ARE AS UNDER: 5. I FIND THAT THE ISSUE IN APPEAL IS NOW SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITAT AMRI TSAR BENCH IN THE CASE OF SIBIA HEALTHCARE PRIVATE LIMITED VS. DC IT - ITA NO.90/ASR/2015, VIDE ORDER DATED 9TH JUNE, 2015, WH EREIN THE DIVISION BENCH HAS INTER ALIA OBSERVED AS UNDER :- 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED T HE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. IN ADDI TION TO HIS ARGUMENT ON THE MERITS, LEARNED COUNSEL HAS ALSO IN VITED OUR ATTENTION TO THE REPORTS ABOUT THE DECISIONS OF VARIOUS HONBLE HIGH COURTS, INCLUDING HONBLE KERALA HIGH COURT, IN THE CASE OF NARATH MAPILA LP SCHOOL VS UNION OF IND IA [WP (C) 31498/2013(J)], HONBLE KARANATAKA HIGH COURT I N THE CASE OF ADITHYA BIZOR P SOLUTIONS VS UNION OF INDIA [WP NO. 6918-6938/2014(T-IT), HONBLE RAJASTHAN HIGH COURT IN THE CASE OF OM PRAKASH DHOOT VS UNION OF INDIA [WP NO. 1981 OF 2014] AND OF HONBLE BOMBAY HIGH COURT IN THE CA SE OF RASHMIKANT KUNDALIA VS UNION OF INDIA [WP NO. 771 O F 2014], GRANTING STAY ON THE DEMANDS RAISED IN RESPE CT OF FEES UNDER SECTION 234E. THE FULL TEXT OF THESE DEC ISIONS WERE NOT PRODUCED BEFORE US. HOWEVER, AS ADMITTEDLY THERE ARE NO ORDERS FROM THE HONBLE COURTS ABOVE RETRAIN ING US FROM OUR ADJUDICATION ON MERITS IN RESPECT OF THE I SSUES IN THIS APPEAL, AND AS, IN OUR HUMBLE UNDERSTANDING, T HIS APPEAL REQUIRES ADJUDICATION ON A VERY SHORT LEGAL ISSUE, ITA NO.2282/AHD/2015 (2 APPEALS) 4 WITHIN A NARROW COMPASS OF MATERIAL FACTS, WE ARE PROCEEDING TO DISPOSE OF THIS APPEAL ON MERITS. 5. WE MAY PRODUCE, FOR READY REFERENCE, SECTION 23 4E OF THE ACT, WHICH WAS INSERTED BY THE FINANCE ACT 2012 AND WAS BROUGHT INTO EFFECT FROM 1ST JULY 2012. THIS S TATUTORY PROVISION IS AS FOLLOWS: 234E. FEE FOR DEFAULTS IN FURNISHING STATEMENTS (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SE CTION 200 OR THE PROVISO TO SUBSECTION (3) OF SECTION 206C, H E SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTI BLE, AS THE CASE MAY BE. (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SUB-SECTION (3) OF SEC TION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR TH E PROVISO TO SUB-SECTION (3) OF SECTION 206C WHICH IS TO BE D ELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURC E OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTE R THE 1ST DAY OF JULY, 2012. 6. WE MAY ALSO REPRODUCE THE SECTION 200A WHICH WA S INSERTED BY THE FINANCE ACT 2009 WITH EFFECT FROM 1 ST APRIL 2010. THIS STATUTORY PROVISION, AS IT STOOD AT THE RELEVA NT POINT OF TIME, WAS AS FOLLOWS: 200A: PROCESSING OF STATEMENTS OF TAX DEDUCTED AT S OURCE (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE, O R A CORRECTION STATEMENT, HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLO WING MANNER, NAMELY: ITA NO.2282/AHD/2015 (2 APPEALS) 5 (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMAT ION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AM OUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID U NDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR: PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FI NANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION : FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMEN T' SHALL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE STATEMENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOUR CE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF TH IS ACT; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB- SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRA LISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUBSECTION. ITA NO.2282/AHD/2015 (2 APPEALS) 6 7. BY WAY OF FINANCE ACT 2015, AND WITH EFFECT FROM 1ST JUNE 2015, THERE IS AN AMENDMENT IN SECTION 200A AND THI S AMENDMENT, AS STATED IN THE FINANCE ACT 2015, IS AS FOLLOWS: IN SECTION 200A OF THE INCOME-TAX ACT, IN SUB-SECTI ON (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WITH EFFECT FROM THE 1ST DAY OF JUNE, 2015, NAMELY: (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 234E; (D) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF TH E AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST AN Y AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 23 4E AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE; (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR. 8. IN EFFECT THUS, POST 1ST JUNE 2015, IN THE COUR SE OF PROCESSING OF A TDS STATEMENT AND ISSUANCE OF INTIM ATION UNDER SECTION 200A IN RESPECT THEREOF, AN ADJUSTMENT COUL D ALSO BE MADE IN RESPECT OF THE FEE, IF ANY, SHALL BE COMPU TED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E. TH ERE IS NO DISPUTE THAT WHAT IS IMPUGNED IN APPEAL BEFORE US I S THE INTIMATION UNDER SECTION 200A OF THE ACT, AS STATED IN SO MANY WORDS IN THE IMPUGNED INTIMATION ITSELF, AND, AS TH E LAW STOOD, PRIOR TO 1ST JUNE 2015, THERE WAS NO ENABLING PROVI SION THEREIN FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEES UNDER S ECTION 234E. WHILE EXAMINING THE CORRECTNESS OF THE INTIMATION U NDER SECTION 200A, WE HAVE TO BE GUIDED BY THE LIMITED MANDATE O F SECTION 200A, WHICH, AT THE RELEVANT POINT OF TIME, PERMITT ED COMPUTATION OF AMOUNT RECOVERABLE FROM, OR PAYABLE TO, THE TAX DEDUCTOR AFTER MAKING THE FOLLOWING ADJUSTMENTS: (A). AFTER MAKING ADJUSTMENT ON ACCOUNT OF ARITHME TICAL ERRORS AND INCORRECT CLAIMS APPARENT FROM ANY INFORMATION IN THE STATEMENT - SECTION 200A(1)(A) ITA NO.2282/AHD/2015 (2 APPEALS) 7 (B). AFTER MAKING ADJUSTMENT FOR INTEREST, IF ANY, COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STA TEMENT. - SECTION 200A(1)(B) 9. NO OTHER ADJUSTMENTS IN THE AMOUNT REFUNDABLE T O, OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBL E IN ACCORDANCE WITH THE LAW AS IT EXISTED AT THAT POINT OF TIME. 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSI DERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SEC TION 234E WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER SECTION 246A(A), AND, THEREFORE, THE CI T(A) OUGHT TO HAVE EXAMINED LEGALITY OF THE ADJUSTMENT MADE UNDER THIS INTIMATION IN THE LIGHT OF THE SCOPE OF THE SECTION 200A. LEARNED CIT(A) HAS NOT DONE SO. HE HAS JUSTIFIED THE LEVY O F FEES ON THE BASIS OF THE PROVISIONS OF SECTION 234E. THAT IS NO T THE ISSUE HERE. THE ISSUE IS WHETHER SUCH A LEVY COULD BE EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A. THE ANSWER IS CLEARL Y 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 P OSITION THAT IN THE ABSENCE OF THE ENABLING PROVISION UNDER SECTION 200A, NO SUCH LEVY COULD BE EFFECTED. AS INTIMATION UNDER SECTION 200A, RAISING A DEMAND OR DIRECTING A REFUND TO THE TAX DEDUCTOR, C AN ONLY BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIA L YEAR WITHIN WHICH THE RELATED TDS STATEMENT IS FILED, AND AS TH E RELATED TDS STATEMENT WAS FILED ON 19TH FEBRUARY 2014, SUCH A L EVY COULD ONLY HAVE BEEN MADE AT BEST WITHIN 31ST MARCH 2015. THAT TIME HAS ALREADY ELAPSED AND THE DEFECT IS THUS NOT CURA BLE EVEN AT THIS STAGE. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARIN G IN MIND ENTIRETY OF THE CASE, THE IMPUGNED LEVY OF FEES UND ER SECTION 234 E IS UNSUSTAINABLE IN LAW. WE, THEREFORE, UPHOLD TH E GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED LEVY OF FEE UN DER SECTION 234E OF THE ACT. THE ASSESSEE GETS THE RELIEF ACCOR DINGLY. 6. WHEN THE ABOVE JUDICIAL PRECEDENT WAS BROUGHT TO THE NOTICE OF THE LD. DEPARTMENTAL REPRESENTATIVE, HE D ID NOT HAVE MUCH TO SAY EXCEPT TO PLACE HIS RELIANCE ON THE ORD ERS OF THE AUTHORITIES BELOW. HE FAIRLY DID NOT DISPUTE THAT THE PROVISIONS ACCEPTING LEVY OF LATE FILING FEES UNDER SECTION 23 4E HAVE INDEED BEEN BROUGHT TO THE STATUTE W.E.F. 1ST JUNE, 2015 A ND THE IMPUGNED ORDER WAS PASSED MUCH BEFORE THAT DATE. 7. IN VIEW OF THE ABOVE DISCUSSIONS AND BEARING IN MIND ENTIRETY OF THE CASE, I HEREBY DELETE THE LEVY OF L ATE FILING FEES ITA NO.2282/AHD/2015 (2 APPEALS) 8 UNDER SECTION 234E OF THE ACT BY WAY OF IMPUGNED IN TIMATION ISSUED. THE ASSESSEE GETS THE RELIEF ACCORDINGLY. 8. IN THE RESULT, APPEAL IS ALLOWED. ORDER PRONOUN CED IN THE OPEN COURT ON THIS 3RD DAY OF SEPTEMBER, 2015. 5. THERE IS NO DISPARITY ON FACTS. CONSIDERING SMA LLNESS OF THE ISSUES WHICH IS CLEARLY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE ITAT, WE DO NOT FIND ANY REASON TO INCREASE THE MUL TIPLICITY OF LITIGATION BY SETTING ASIDE THE ISSUE FOR ADJUDICATING AFRESH. WE, THEREFORE ALLOW THE APPEALS OF THE ASSESSEE, AND DELETE THE DEMAND RAISED UNDER SECTION 234E OF THE ACT ALONG WITH CONSEQUENTIAL IN TEREST ON NON- PAYMENT ON THESE DEMANDS. 6. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 14 TH OCTOBER, 2015 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER