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

ITA 2321/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3607 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2020
• 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

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. 2312 TO 2322/DEL/2017 [A.YS 13-14 & 2014-15] M/S AVV ENTERPRISES 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 : 04.03.2020 DATE OF PRONOUNCEMENT : 05.03.2020 ASSESSEE BY : NONE [W/S] REVENUE BY : MS. RAKHI VIMAL, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THE ABOVE CAPTIONED APPEALS BY THE SAME ASSESSEE AR E PREFERRED AGAINST THE LEVY OF FEE U/S 234E OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] FO R A.YS 2013-14 TO 2014- 15. 2 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVE R, THE ASSESSEE CHOSE TO FILE WRITTEN SUBMISSIONS. 3. THE SUM AND SUBSTANCE OF THE CONTENTION OF THE A SSESSEE IS THAT IN THE CAPTIONED APPEALS PERTAINING TO A.YS 2013-14 AND 2014-15 AN AMENDMENT HAS BEEN BROUGHT IN THE ACT W.E.F 01.06.2 015 U/S 234E OF THE ACT AND BEFORE THAT THERE WAS NO AUTHORITY OR C OMPETENCE OR JURISDICTION ON THE PART OF THE CONCERNED OFFICER O R DEPARTMENT TO COMPUTE AND DETERMINE THE FEE U/S 234E OF THE ACT. 4. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE FI NDINGS OF THE ASSESSING OFFICER. IT IS THE SAY OF THE LD. DR THA T SECTION 234E WAS ALREADY IN THE ACT AND, THEREFORE, FEE HAS BEEN RIG HTLY LEVIED BY THE ASSESSING OFFICER U/S 234E OF THE ACT. 5. 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: 3 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 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. 6. 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 4 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. 7. 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. 8. 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 ALL THE ABOVE CAPTIONED APPEALS OF THE ASSESSEE. 5 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE I N ITA NOS. 2312 & 2322/DEL/2017 ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05.03 .2020. SD/- SD/- [H.S. SIDHU] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 05 TH MARCH, 2020. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 6 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