M/s. GMV Services, Delhi V. ACIT (CPC- TDS), Ghaziabad

ITA 2329/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2289 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2016-2017
• Appeal Filed On: 18-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S. N. MEENA
• Keywords: Reasonable cause; Condonation of delay; TDS
• Section: 234E; 200A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A. NO. 2329/DEL/2017 (A.Y. 2016-17) GMV SERVICES, 432, 3 RD FLOOR, SAINIK VIHAR, PITAM PURA, DELHI 110 034. PAN : BECPM 1241 L (APPELLANT) VS. ACIT (CPC TDS) AAYAKAR BHAWAN, SECTOR 3, VAISHALI GHAZIABAD (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 31.01.2017 PASSED BY CIT(A)-41, NEW DELHI FOR ASSESSMENT YEAR 2016-17. 2. THE GROUNDS OF APPEAL ARE AS UNDER: 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, IT WAS NOT JUSTIFIED ON THE PART OF THE DEPARTMENT TO LEVY THE LATE FILING FEES U/S 234E OF THE I.T. ACT AMOUNTING TO RS. 3000/- RELEVANT TO 2 ND QUARTER JULY 2015 TO SEPTEMBER 2015. THAT THE APPELLANT HAD DULY DEPOSITED THE TOTAL TDS WITH THE BANK AND THE LATE FILING OF RETURN WAS ONLY A PROCEDURAL IN NATURE AND DID NOT RESULT INTO ANY LOSS OF REVENUE. THAT THE APPELLANT HAD A REASONABLE CAUSE FOR NOT FILING THE RETURN IN TIME AND NO FEE FOR LATE FILING DESERVES TO BE LEVIED. 2. THAT THE ORDERS OF THE LOWER AUTHORITIES ARE NOT JUSTIFIED ON FACTS AND SAME ARE BAD IN LAW. APPELLANT BY --NONE-- RESPONDENT BY SH. S. N. MEENA, SR. DR DATE OF HEARING 05.12.2019 DATE OF PRONOUNCEMENT 05.12.2019 3. THAT THE ASSESSEE CRAVES THE RIGHT TO ADD, AMEND, DELETE OR SUBSTITUTE ANY GROUND OF APPEAL. 3. THE REVENUE VIDE ORDER DATED 22.12.2015 U/S 200A OF THE INCOME TAX ACT, 1961 HELD THAT A SUM OF RS.3000/- IS DETERMINED IN RESPECT OF THE TDS STATEMENT FILED BY THE ASSESSEE. THE ASSESSEE HAS FILED ITS TDS STATEMENT IN 24Q FOR THE 2 ND QUARTER OF FINANCIAL YEAR 2015-16 (A.Y. 2016-17) ON 18.12.2015 WHICH IS BEYOND THE DUE DATE. THEREFORE, FEE HAS BEEN CHARGED U/S 234E OF THE INCOME TAX ACT FOR A LATE FILING OF THE STATEMENT. 4. BEING AGGRIEVED BY THE ORDER U/S 200A PASSED BY THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. DURING THE HEARING, DESPITE GIVING NOTICE, NONE APPEARED FOR THE ASSESSEE BEFORE US. NOTICE FOR HEARING WAS PROPERLY ISSUED AND SERVED UPON THE ASSESSEE WITHIN TIME. THUS, THE SERVICE WAS COMPLETE, BUT SINCE NONE IS PRESENT ON BEHALF OF THE ASSESSEE, WE ARE PROCEEDING ON THE BASIS OF ORDER U/S 200A OF THE ACT AND THE ORDER OF THE CIT(A). 6. THE LD. DR RELIED UPON THE ORDER U/S 200A OF THE ACT AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD LD. DR AND PERUSED ALL THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE FEE U/S 234E IS REQUIRED TO BE MANDATORILY PAID BY THE DEDUCTOR AT THE TIME OF SUBMISSION OF THE TDS STATEMENT, CALCULATED AT THE RATE OF RUPEES TWO HUNDRED PER DAY. THERE IS NO PROVISION IN THE ACT WHICH ALLOWS FOR WAIVER FROM THE PAYMENT OF SUCH FEES ON GROUNDS LIKE THE ONES RAISED BY THE APPELLANT. ANY SUCH CONDONATION OF DELAY OR LENIENCY WOULD MEAN PUNISHING THE LAW ABIDING DEDUCTORS WHO HAD DULY CALCULATED THE FEES U/S 234E AND PAID THE SAME. NON LEVY OF THE FEE WOULD MEAN PUNISHING THE HONEST AND REWARDING THE GUILTY, WHICH CAN NEVER BE THE INTENTION OF THE LEGISLATURE. IN A JUDGMENT PASSED BY THE HONBLE KERALA HIGH COURT IN CASE OF SHREE NARAYANA GURU SMARAKA SANGAM UPPER PRIMARY SCHOOL VS. UOI & ORS. (WP(C).NO. 30229 OF 2013 (C) DATED 13.12.2016, THE HONBLE HIGH COURT UPHELD THE LEVY OF FEE U/S 234E AND HAS HELD THAT ON ACCOUNT OF THE ADDITIONAL WORK BURDEN WHICH HAS FALLEN UPON THE DEPARTMENT DUE TO THE FAULT OF THE DEDUCTOR THAT A FEE HAS BEEN LEVIED. HENCE THE CLAIM OF THE APPELLANT THAT LATE FILING WAS ONLY PROCEDURAL AND DID NOT RESULT IN ANY LOSS TO REVENUE HAS NO BEARING ON THE LEVY OF FEE U/S 234E. THIS REASONING IS ALSO FOLLOWED BY THE VARIOUS HONBLE HIGH COURTS IN THE CASES OF RASHMIKANT KUNDALIA VS. UNION OF INDIA 2015 (54) TAXMAN.COM 200 (BOMBAY), LAKSHMINIRMAN BANGALORE (P) LTD. VS. DCIT, GHAZIABAD [(2015) 60 TAXMANN.COM 144], M/S DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA AND SHREE NARAYANA GURU SMARAK SANGAM UPPER PRIMARY SCHOOL VS. UOI & ORS. CITED (SUPRA). THEREFORE, IT IS PERTINENT TO NOTE THAT THE ASSESSEE IS ADMITTING THAT LATE FILING OF TDS RETURN WAS DUE TO TECHNICAL AND PROCEDURAL DEFAULT AND NOT ON ACCOUNT OF ANY WITHHOLDING OF TDS BY THE ASSESSEE. SECTION 234E OF THE ACT CLEARLY SETS OUT THAT THE FEE IMPOSED UNDER SECTION 234E IS LEVIED TOWARDS REGULARIZATION OF THE DELAY IN FILING OF A TDS RETURN OR STATEMENT; SINCE THE REVENUE DEPARTMENT HAS TO EXPEND EXTRA EFFORT AND RESOURCES FOR PROCESSING DELAYED TDS RETURNS OR STATEMENTS AND POSSIBLY ALSO INCURS THE ADDITIONAL BURDEN OF INTEREST TO BE PAID TO THE ASSESSEE ON WHOSE ACCOUNT TAX DEDUCTION HAS BEEN MADE. THE FEE IMPOSED U/S 234E IS FOR ALL INTENTS AND PURPOSES A LATE FEE PAYABLE FOR ACCEPTING THE TDS/STATEMENT/RETURN AT A BELATED POINT IN TIME. THUS, THE APPEAL OF THE ASSESSEE IS DISMISSED. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH DECEMBER, 2019 . SD/- SD/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 05/12/2019 *PRITI YADAV, SR. PS* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 05 . 12 .2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05 . 12 .2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 05 . 12 .2019 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 05 . 12 .2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 05 . 12 .2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 05 . 12 .2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 05 . 12 .2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 05 . 12 .2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK