Exotique Exports, New Delhi V. ACIT (CPC- TDS), Ghaziabad

ITA 2331/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4561 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2016-2017
• Appeal Filed On: 18-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SURENDRA MEENA
• Keywords: Reasonable cause; Condonation of delay; TDS
• Section: 2; 234E; 200A; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE MS SUCHITRA KAMBLE, JU DICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEM BER I.T.A. NO. 2331/DEL/2 017 (A.Y. 2016-17) EXOTIQUE EXPORTS Z-45, OKHLA INDUSTRIAL AREA, PHASE II, NEW DELHI- 110020 PAN : AAAFE1843K (APPELLANT) VS. ACIT (CPC TDS) AAYAKAR BHAWAN, SECTOR 3, VAISHALI GHAZIABAD (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED 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 C ASE, 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. 12,800/- 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 NATU RE AND DID NOT RESULT INTO ANY LOSS OF REVENUE. THAT THE APPELLANT HAD A REASONABLE CAUSE FOR NOT F ILING THE RETURN IN TIME AND NO FEE FOR LATE FILING DESERVES TO BE LEVIED. APPELLANT BY NONE RESPONDENT BY SH. SURENDRA MEENA, SR.DR DATE OF HEARING 08.08.2019 DATE OF PRONOUNCEMENT 27.08.2019 2. THAT THE ORDERS OF THE LOWER AUTHORITIES ARE NOT JUSTIFIED ON FACTS AND SAME ARE BAD IN LAW. 3. THAT THE ASSESSEE CRAVES THE RIGHT TO ADD, AMEND , DELETE OR SUBSTITUTE ANY GROUND OF APPEAL. 3. ORDER U/S 200A OF THE INCOME TAX ACT, 1961 DATED 22.12.2015 WAS PASSED BY THE ACIT, CPC-TDS IN RESPECT OF LEVY OF L ATE FILING FEES U/S 234E OF THE INCOME TAX ACT. 4. BEING AGGRIEVED BY THE ORDER U/S 200A OF THE INC OME TAX ACT, 1961, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT (A ) DISMISSED THE APPEAL OF THE ASSESSEE. 5. DURING THE HEARING, DESPITE FILING THE POWER OF ATTORNEY, NONE APPEARED FOR THE ASSESSEE NOR WAS THE ASSESSEE PRESENT BEFOR E 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 O F THE ASSESSEE, WE ARE PROCEEDING ON THE BASIS OF ORDER U/S 200A OF THE AC T 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 RELEVAN T MATERIAL AVAILABLE ON RECORD. THE CIT(A) HELD AS UNDER: 5.5 IT IS ALSO WORTH MENTIONING THAT THE FEE U/S 2 34E IS REQUIRED TO BE MANDATORILY PAID BY THE DEDUCTOR AT THE TIME OF SUB MISSION OF THE TDS STATEMENT, CALCULATED AT THE RATE OF RUPEES TWO HUN DRED PER DAY. THERE IS NO PROVISION IN THE ACT WHICH ALLOWS FOR WAIVER FROM T HE 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 DE DUCTORS 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. 5.6 IN A RECENT JUDGMENT THE KERALA HIGH COURT IN T HE CASE OF SHREE NARAYANA GURU SMARAK SANGAM UPPER PRIMARY SCHOOL VS . UOI & ORS IN DECEMBER 2016 HAS FURTHER 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 ONL Y PROCEDURAL AND DID NOT RESULT IN ANY LOSS TO REVENUE HAS NO BEARING ON THE LEVY OF FEE U/S 234E. 5.7 IN LIGHT OF THE ABOVE DISCUSSION AND RESPECTFUL LY FOLLOWING THE DECISIONS OF VARIOUS THE HONBLE HIGH COURTS IN THE CASES OF RASHMIKANT KUNDALIA VS. UNION OF INDIA 2015 (54) TAXMAN.COM 20 0 (BOMBAY), LAKSHMINIRMAN BANGALORE (P) LTD. VS. DCIT, GHAZIABA D [(2015) 60 TAXMANN.COM 144], M/S DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA AND SHREE NARAYANA GURU SMARAK SANGAM UPPER PRIMARY SCH OOL VS. UOI & ORS. CITED SUPRA, THE GROUNDS THE GROUNDS OF APPEAL FILE D BY THE APPELLANT ARE DISMISSED. IT IS PERTINENT TO NOTE THAT THE ASSESSEE IS ADMITT ING 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 T OWARDS 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 POI NT IN TIME. THUS, THERE IS NO NEED TO INTERFERE WITH THE FINDING OF THE CIT(A) . THE APPEAL OF THE ASSESSEE IS DISMISSED. 7. IN RESULT, THE APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST, 2019 . SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27/08/2019 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION .08.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .08.2019 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 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK