M/s. Ajvin Infotech Pvt. Ltd., Delhi V. DCIT (CPC- TDS), Ghaziabad

ITA 2305/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3570 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 18-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 234E; 200A; 201

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BEN CH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA ACCOUNTANT MEMBER ITA NO. 2305/DEL/2017 ITA NO. 2306/DEL/2017 M/S AJVIN INFOTECH PVT LTD VS. THE DY. C.I.T B 30, 3 RD FLOOR, CPC TDS, CHANDRA GUPT COMPLEX GHAZIABAD SUBASH CHOWK, LAXMI NAGAR DELHI PAN : AAICA 2539 F [APPELLANT] [RESPONDENT] DATE OF HEARING : 03.03.2020 DATE OF PRONOUNCEMENT : 04.03.2020 ASSESSEE BY : NONE REVENUE BY : MS. RAKHI VIMAL, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THESE TWO SEPARATE APPEALS BY THE SAME ASSESSEE ARE PREFERRED AGAINST THE COMMON ORDER OF THE CIT(A) - 41, NEW DE LHI, DATED 27.01.2017 PERTAINING TO A.Y 2014-15 RELEVANT TO SE COND QUARTER OF F.Y. 2013-14 AND THIRD QUARTER OF F.Y. 2013-14 . 2 2. THE COMMON GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY U/S 234E OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHOR T]. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF NOTICE ISSUED NOR THERE IN ANY APPLICATION FOR ADJOURNMENT. THER EFORE, WE DECIDED TO PROCEED EX PARTE. 4. HAVING HEARD THE LD. DR WHO STRONGLY SUPPORTED T HE FINDINGS OF THE ASSESSING OFFICER. WE HAVE CAREFULLY PERUSED TH E ORDERS OF THE AUTHORITIES BELOW. 5. THE MAIN CONTENTION OF THE ASSESSEE, AS CULLED O UT FROM THE ORDERS OF THE AUTHORITIES BELOW ARE THAT: 7. AS PER THE PROVISIONS OF SEC. 234E MADE APPLICA BLE W.E.F. 1ST JULY, 2012 STATES THAT AMOUNT OF LATE FEE SHAL L BE PAID BEFORE DELIVERING A TDS STATEMENT. THUS, IT MEANS THAT ANY LATE FEE SHOULD HAVE BEEN DEPOSITED JUST AT THE TIME OF DELIVERING TDS STATEMENT AND NOT LATER THAN THIS. THE AUTHORIZ ED TIN- NSDL CENTRE WHICH ACCEPTED THE TDS STATEMENT ALSO A CCEPTED THESE WITHOUT LATE FEE, AS WELL AS THE SOFTWARE UTI LITY OF THE TDS DEPARTMENT ITSELF ACCEPTED THESE WITHOUT LATE F EE. ONCE 3 THE TDS STATEMENT HAS BEEN ACCEPTED WITHOUT LATE FE E, THEN SUCH LATE FEE CANNOT BE RECOVERED LATER ON. TDS STA TEMENT LATE FEE CANNOT BE RECOVERED FOR F.Y. 2013-14, AS IT IS NOT COLLECTED AT THE TIME OF DELIVERING TDS STATEMENT TO THE DEPA RTMENT. 8. AS PER FINANCE ACT 2015 APPLICABLE W.E.F. 01.06. 2015, , SUB-SEC. 200A IS AMENDED TO PROVIDE THAT STATEMENT OF TAX DEDUCTION AT SOURCE OR CORRECTION STATEMENT MADE U/ S. 200 SHALL BE PROCESSED AND SUM DEDUCTIBLE UNDER CHAPTER XVII SHALL BE COMPUTED AFTER ALSO TAKING INTO ACCOUNT THE FEE, IF ANY, PAYABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E. THE SUM PAYABLE OR REFUNDABLE SHALL BE DETERMINED AFTER ADJ USTING THE AFORESAID COMPUTED SUM AGAINST ANY AMOUNT PAID UNDE R SECTION 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT P AID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE. REFERRING TO FINANCE ACT, 2015, ATTENTION IS DRAWN TO YOUR GOOD SELF THAT WITH EFFECT FROM 01.06.2015, TH E PARLIAMENT BY WAY OF AMENDMENT TO SECTION 200A OF THE ACT EMPOWERED THE ASSESSING OFFICER TO LEVY FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING UNDE R SECTION 200A OF THE ACT. THEREFORE, ACCORDING TO THE FINANCE ACT, 2015, PRIO R TO 01.06.2015, YOUR GOOD SELF HAD NO AUTHORITY TO L EVY FEE, IF ANY, UNDER SECTION 234E OF THE ACT AND THUS 4 LEVY OF FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT IS BEYOND THE SCOPE OF SECTION 200A OF THE ACT. THUS, THE DEMAND RAISED BY THE LD. ASSESSING OFFIC ER WHICH RELATES TO THE SECTION 234E WHICH IS CHARGED AS LATE FILING OF RETURN CHARGING RS. 200 PER DAY I S UNJUSTIFIED AND SHOULD BE DELETED. 6. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE OR DERS OF THE AUTHORITIES BELOW. WE FIND FORCE IN THE WRITTEN CON TENTIONS OF THE LD. COUNSEL FOR THE ASSESSEE. THE HON'BLE HIGH COURT O F KARNATAKA IN THE CASE OF FATHERAJ SINGHVI & ORS 289 CTR 602 HAD THE OCCASION TO CONSIDER SIMILAR ISSUE AND MADE THE FOLLOWING OBSER VATIONS WHILE ADJUDICATING THE MATTER: 14. WE MAY NOW DEAL WITH THE CONTENTIONS RAISED BY THE LEARNED COUNSEL FOR THE APPELLANTS. THE FIRST CONTENTION FO R ASSAILING THE LEGALITY AND VALIDITY OF THE INTIMATION UNDER SECTI ON 200A WAS THAT, THE PROVISION OF SECTION 200A(L)(C), (D) AND (F) HAVE COME INTO FORCE ONLY WITH EFFECT FROM 01.06.2015 AND HEN CE, THERE WAS NO AUTHORITY OR COMPETENCE OR JURISDICTION ON T HE PARROFT H E~C O N C E RN E D OFFICER OR THE DEPARTMENT TO COM PUTE AND DETERMINE THE FEE UNDER SECTION 234E IN RESPECT OF THE ASSESSMENT YEAR OF THE EARLIER PERIOD AND THE RETUR N FILED FOR 5 THE SAID RESPECTIVE ASSESSMENT YEARS NAMELY ALL ASS ESSMENT YEARS AND THE RETURNS PRIOR TO 01.06.2015. IT WAS S UBMITTED THAT, WHEN NO EXPRESS AUTHORITY WAS CONFERRED BY TH E STATUTE UNDER SECTION 200A PRIOR TO 01.06.2015 FOR COMPUTAT ION OF ANY FEE UNDER SECTION 234E NOR THE DETERMINATION THEREO F, THE DEMAND OR THE INTIMATION FOR THE PREVIOUS PERIOD OR PREVIOUS YEAR PRIOR TO 01.06.2015 COULD NOT HAVE BEEN MADE. 7. SIMILAR VIEW WAS TAKEN BY THE CO-ORDINATE BENCH IN THE CASE OF M/S VKARE BIO SCIENCES PVT LTD VS. DCIT, CPC-TDS, G HAZIABAD IN WHICH IT WAS HELD AS UNDER: THE JUDGEMENT RELIED UPON BY THE LD. DR RELATE TO THE CONSTITUTIONAL VALIDITY AND VIRES OF THE PROVISION OF SEC. 234E. NOWHERE IN THE JUDGMENTS HONBLE COURTS HAVE HELD T HAT THE FEES U/S 200A READ WITH SECTION 234E SHALL LEVIED PRIOR TO 01.06.2015 BECAUSE PRIOR TO THIS DATE HAS NOT PRESC RIBED LEVY OF FEES U/S 200A. THUS, WE HOLD THAT NO FEE WAS LEVIAB LE TO THE ASSESSEE U/S 234E IN VIOLATION OF SECTION 200(3), B ECAUSE ASSESSEE U/S 234E IN VIOLATION OF SECTION 200(3), B ECAUSE ASSESSEE HAD FURNISHED THE STATEMENT IMMEDIATELY AF TER DEPOSITING ALL THE TAX WITHOUT ANY DELAY. ACCORDING LY, THE DEMAND ON ACCOUNT OF 234E IS CANCELLED. ACCORDINGLY , THE APPEAL OF THE ASSESSEE IS ALLOWED. 6 8. MOREOVER, IF THERE IS A DIVERGENCE OF OPINION BE TWEEN DIFFERENT HON'BLE HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED AS LAID DOWN BY THE HON'BLE SU PREME COURT IN THE CASE OF VEGETABLE PRODUCTS LTD 88 ITR 192. 9. IN LIGHT OF THE EFFECTIVE DATE OF AMENDMENT I.E. 01.06.2015, AND CONSIDERING THE DECISION OF THE HON'BLE HIGH COURT OF KARNATAKA, WE DIRECT THE ASSESSING OFFICER TO DELETE THE FEE LEVI ED U/S 234E OF THE ACT IN BOTH THE APPEALS OF THE ASSESSEE. 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE IN ITA NOS. 2305 & 2306/DEL/2017 ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 04.03. 2020. SD/- SD/- [H.S. SIDHU] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 04 TH MARCH, 2020. VL/ 7 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER