M/s Kam Air Co. Ltd., New Delhi V. DCIT CPC-(TDS), Ghaziabad

ITA 2323/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6665 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: misc
• Appeal Filed On: 28-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS

Judgement Text

1 ITA NOS. 2322 & 2323/DEL/2016 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI G. D. AGRAWAL, VICE PRESID ENT AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A. NO. 2322/DEL/2 016 (A.Y 2014-15) I.T.A. NO. 2323/DEL/2 016 (A.Y 2014-15) KAM AIR CO. LTD. 1-84B, GROUND FLOOR, LAJPAT NAGAR-II NEW DELHI AADCK0451D (APPELLANT) VS DCIT CPC - (TDS) GHAZIABAD (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. N. K. BANSAL, SR. DR ORDER PER SUCHITRA KAMBLE, JM THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER DATED 25/01/2016 PASSED BY CIT-41, NEW DELHI FOR ASSESSME NT YEAR 2014-15. AS RELATES TO 3 RD QUARTER FORM 26 Q FOR FINANCIAL YEAR 2013-14. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- I.T.A. NO. 2322/DEL/2016 1. THAT THE APPELLATE ORDER AS PASSED BY THE LD. CIT (APPEALS) IS BAD IN LAW AND CONTRARY TO THE FACT OF THE CASE. 2. THAT THE LD. CIT (A) HAS ERRED IN LAW AND FACTS OF THE CASE BY CONFIRMING THE ADDITION OF RS. 48,800/- ON ACCOUNT OF LATE FILING OF TDS RETURN. DATE OF HEARING 02.04.2019 DATE OF PRONOUNCEMENT 07.05.2019 2 ITA NOS. 2322 & 2323/DEL/2016 3. THAT THE LEVY OF FEE UNDER SECTION 234E OF THE ACT BEING UNJUST, ARBITRARY, DISCRIMINATORY, WITHOUT THE AUTHORITY OF LAW, IS VIOLATIVE OF ARTICLE 14, ARTICLE 19(L)(G), ARTICLE 265 AND AR TICLE 300A OF THE CONSTITUTION OF INDIA, AND CAUSES IRREPARABLE LOSS TO THE APPELLANT. 4. THAT THE CHARGE OF LATE FILING UNDER SECTION 234E OF THE ACT IN THE GARB OF A 'FEE' IS NOTHING BUT A SHADOW-PENALTY FOR THE DELAY IN THE FILING THE STATEMENT UNDER SECTION 200(3) OF THE AC T. SECTION 271H(L)(A) OF THE ACT, ALREADY SEEKS TO LEVY A PENA LTY FOR VERY SAME OFFENCE'. IT IS SETTLED LAW THAT AN ASSESSEE CANNOT BE PENALIZED TWICE FOR THE VERY SAME CAUSE OF ACTION F OR THE VERY SAME ASSESSMENT YEAR. THE LEVY OF A FEE 1 UNDER SECTION 234E OF THE ACT IS THEREFORE ILLEGAL AND CONTRARY TO SETTLE D JUDICIAL PRECEDENTS, AND IS THEREFORE LIABLE TO BE DELETED. 5. THAT WITHOUT PREJUDICE TO THE ABOVE SUBMISSION, IT IS SUBMITTED THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E APPELLANT COMPANY WAS PREVENTED BY SUFFICIENT CAUSE FOR DELAY IN SUBMITTING THE STATEMENT U/S 200(3) OF THE INCOME T AX ACT, 1961 AND IT IS PRAYED THAT THE FEE IMPOSED AT RS 48,800/ - U/S 234E OF INCOME TAX ACT KINDLY BE DELETED. 6. THE APPELLANTS FURTHER CRAVES LEAVE TO RELY UPON A ND PRODUCE ADDITIONAL DOCUMENTS AND MAKE FURTHER SUBMISSIONS, DURING THE COURSE OF HEARING. I.T.A. NO. 2323/DEL/2016 1. THAT THE APPELLATE ORDER AS PASSED BY THE LD. C IT (APPEALS) IS BAD IN LAW AND CONTRARY TO THE FACT OF THE CASE. 3 ITA NOS. 2322 & 2323/DEL/2016 2. THAT THE LD. CIT (A) HAS ERRED IN LAW AND FACTS OF THE CASE BY CONFIRMING THE ADDITION OF RS. 88,760/- ON ACCOUNT OF LATE FILING OF TDS RETURN. 3. THAT THE LEVY OF FEE UNDER SECTION 234E OF THE ACT BEING UNJUST, ARBITRARY, DISCRIMINATORY, WITHOUT THE AUTHORITY OF LAW, IS VIOLATIVE OF ARTICLE 14, ARTICLE 19(L)(G), ARTICLE 265 AND ARTIC LE 300A OF THE CONSTITUTION OF INDIA, AND CAUSES IRREPARABLE LOSS TO THE APPELLANT. 4. THAT THE CHARGE OF LATE FILING UNDER SECTION 23 4E OF THE ACT IN THE GARB OF A 'FEE' IS NOTHING BUT A SHADOW-PENALTY FOR THE DELAY IN THE FILING THE STATEMENT UNDER SECTION 200(3) OF THE AC T. SECTION 271H(L)(A) OF THE ACT, ALREADY SEEKS TO LEVY A PENALTY FOR VER Y SAME 'OFFENCE'. IT IS SETTLED LAW THAT AN ASSES SEE CANNOT BE PENALIZED T WICE FOR THE VERY SAME CAUSE OF ACTION FOR THE VERY SAME ASSESSMENT Y EAR. THE LEVY OF A 'FEE' UNDER SECTION 234E OF THE ACT IS THEREFORE ILLEGAL AND CONTRARY TO SETTLED JUDICIAL PRECEDENTS, AND IS THEREFORE LI ABLE TO BE DELETED. 5. THAT WITHOUT PREJUDICE TO THE ABOVE SUBMISSION, IT IS SUBMITTED THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E APPELLANT COMPANY WAS PREVENTED BY SUFFICIENT CAUSE FOR DELAY IN SUBMITTING THE STATEMENT U/S 200(3) OF THE INCOME TAX ACT, 196 1 AND IT IS PRAYED THAT THE FEE IMPOSED AT RS 88,760/- U/S 234E OF INC OME TAX ACT KINDLY BE DELETED. 6. THE APPELLANTS FURTHER CRAVES LEAVE TO RELY UPO N AND PRODUCE ADDITIONAL DOCUMENTS AND MAKE FURTHER SUBMISSIONS, DURING THE COURSE OF HEARING. 4 ITA NOS. 2322 & 2323/DEL/2016 3. AT THE TIME OF HEARING, THE ASSESSEE HAS NOT APP EARED NEITHER THERE WAS ANY ADJOURNMENT APPLICATION DESPITE NOTICE HAS BEEN SERVED ON 7/3/2019. THEREFORE, WE ARE TAKING UP THE MATTER FROM THE REC ORDS, IT CAN BE SEEN THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS RELATING TO LEVY OF LATE FILING FEES U/S 234E OF THE INCOME TAX ACT, FOR DELAY IN FILING OF TDS STATEMENT AS PER INTIMATION U/S 200A OF THE INCOME TAX ACT. THE CIT (A) WHILE DECIDING THE APPEAL OF THE ASSESSEE DISMISSED THE APPEAL OF THE ASSESSEE 4. THE LD. DR RELIED UPON THE ORDER OF THE CIT(A) A ND SUBMITTED THAT THE LEVY OF LATE FILING FEES U/S 234E HAS BEEN PROPERLY LEVIED BY THE ASSESSING OFFICER. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. WE HAVE GONE THROUGH THE SUBMISSIONS OF THE REVENUE AND ALSO THAT OF THE SUBMISSIONS OF THE ASSESSEE BEFORE THE CIT(A). THE ASSESSEE BEFORE THE CIT(A) SUBMITTED THAT THE AMENDMENT IN SECTION 200(A) (1) FROM CLAUSE (C) TO (E) HAS BEEN MADE FOR THE FIRST TIME ENABLING THE ASSESSING OFFICER TO MAKE ADJUSTMENT BY LEVYING FEES U/S 234E OF THE ACT W.E. F. 1/6/2015. THIS ASPECT WAS NOT DEALT BY THE CIT(A) INSTEAD ONLY RELIED UPO N THE DECISIONS WHICH HAS NOT DEALT WITH THE AMENDED POSITION OF SECTION 200A AND EFFECTIVE DATE OF AMENDMENT. IT IS PERTINENT TO NOTE THAT ON THIS IS SUE, THERE ARE CONTRARY VIEWS ONE BY HONBLE GUJARAT HIGH COURT IN CASE OF RAJE SH KOURANI VS. UNION OF INDIA (2017) 83 TAXMANN.COM 137 IN FAVOUR OF REVENU E, AND THE OTHER OF THE HONBLE KARNATAKA HIGH COURT IN CASE OF FATHERAJ SI NGHVI (2016) 73 TAXMANN.COM 252 IN FAVOUR OF THE ASSESSEE. IT IS SE TTLED LAW THAT WHEN TWO VIEWS ARE POSSIBLE, THE VIEW IN FAVOUR OF THE ASSES SEE IS TO BE ADOPTED. THEREFORE, FOLLOWING THE DECISION OF THE HONBLE KA RNATAKA HIGH COURT IN CASE OF FATHERAJ SINGHVI (SUPRA), WE HOLD THAT THE LEVY OF FEE UNDER SECTION 234E PRIOR TO 1 ST JUNE, 2015 WAS NOT SUSTAINABLE. ACCORDINGLY, WE D ELETE THE PENALTY ORDER 5 ITA NOS. 2322 & 2323/DEL/2016 AND ALLOW THE APPEALS OF THE ASSESSEE AS BOTH THE A PPEALS ARE ON IDENTICAL FACTS. 6. IN RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH MAY, 2019 . SD/- SD/- (G. D. AGRAWAL) (SUCHITRA KAMBLE) VICE PRESIDENT JUDICIAL MEMBER DATED: 07/05/2019 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 6 ITA NOS. 2322 & 2323/DEL/2016 DATE OF DICTATION 02.04.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 02.04.2019 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. PS/PS 0 7 .0 5 .2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 0 7 .0 5 .2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 0 7 .0 5 .2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK