Dr. Mehar Chand Garg, Kaithal V. JCIT (TDS), Ghaziabad

ITA 2499/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3618 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 04-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PERMIL GOYAL
• Keywords: Condonation of delay
• Section: 246

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE MS. BEENA A. PILLAI, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBE R ITA NO. 2499/DEL./2016 ASSESSMENT YEAR: 2015-16 DR. MEHAR CHAND GARG C/O RAJIV CHAUDHARY, ADV. 26, PROFESSOR COLONY, KAITHAL PAN: ACSPG7403K VS JCIT(TDS), GHAZIABAD (APPELLANT) (RESPONDENT) APPELLANT BY: SH. PERMIL GOYAL, ADVOCATE ASSESSEE BY: SHRI R AJESH KUMAR, SR DR DATE OF HEARING: 29/01/2018 DATE OF PRONOUNCEMENT: 31/01/2018 ORDER PER, DR. MITHA LAL MEENA, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF THE CIT(A)-1, GURGAON, DATED 08.02.2016 PERTAINING TO T HE ASSESSMENT YEAR 2015-16 WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWI NG EFFECTIVE GROUND OF APPEAL: 1.THAT THE LD. CIT (APPEALS)-I GURGAON (HARYANA) H AS ERRED IN DECIDING THE APPEAL U/S 250(6) OF THE ACT DESPITE O F THE FACT THAT INTIMATION WAS PASSED U/S 200A OF THE INCOME TAX AC T BY THE LD. DCIT, TDS INSTEAD OF SEC. 234E R.W.S 200A OF THE AC T AS MENTIONED IN HIS ORDER THOUGH BY CLERICAL MISTAKE, WHILE FILLING FIRST APPEAL BEFORE THE LD. CIT(A) KARNAL, IN FORM NO-35, WE HAD MENTIO NED THAT THE ITA NO.2499/DEL/2016 2 ASSESSING OFFICER HAS PASSED THE ORDER APPEALED AGA INST U/S 234E R.W.S. 200A OF THE ACT. 2. THE ISSUE FOR CONSIDERATION IS REGARDING LEVY OF FEE UNDER SECTION 234E OF THE ACT, WHILE PROCESSING THE STATE MENT FURNISHED BY THE ASSESSEE UNDER SECTION 200A OF THE ACT. 3. THE ASSESSEE HAS FILED TDS RETURN OF Q-1 FOR F.Y . 2014-15 WITH THE TDS (CPC), GHAZIABAD, ON 14/10/2014, AFTER 91 DAYS FROM THE DUE DATE I.E. ON 15.07.2014. THE JCIT, CPC (TDS) GHAZIABAD IMPOSED LATE FILING FEES AT THE RATE OF R S. 200/- PER DAY FOR THE AFORESAID DELAY OF 91 DAYS, AMOUNTING TO RS . 18200/- U/S 234E, VIDE INTIMATION U/S 200A OF THE INCOME TAX AC T. DATED 20.10.2014. 3. ON APPEAL, THE LD. CIT (A) KARNAL CONFIRMED THE LEVY OF LATE FEES OF RS. 18200/- U/S 234E OF THE ACT AND REJECTE D THE SAID APPEAL VIDE HIS ORDER DATED 08.02.2016 OBSERVING TH AT THE ISSUE OF LEGALITY OF ORDERS PASSED UNDER SECTION 200A, LEVYI NG LATE FILING FEEL U/S 234E PRIOR TO 01.06.2015 WAS EXAMINED BY THE HO N,BLE RAJASTHAN HIGH COURT IN THE CASE OF M/S. DUNDLOD SH IKSHAN ITA NO.2499/DEL/2016 3 SANSTHAN & . VS UNION OF INDIA AND ORS. ORDER DATE D 28 JULY, 2015 (UNCITED). THE RELEVANT PARA IS REPRODUCED BE LOW: - IN THE PRESENT CASE, THE FEE WAS LEVIED UNDER SECT ION 200 FOR LATE FILING OF THE RETURNS, PRIOR TO THE AMENDM ENTS MADE BY THE FINANCE ACT, 2015 WITH EFFECT FROM 01.06.2015 IN SE CTION 200A, 246 A AND 272A PROVIDING FOR COMPUTATION AND APPEAL . WE DO NOT FIND THAT EVEN PRIOR TO THESE AMENDMENTS THE IMPOSI TION OF FEE WAS ILLEGAL. WE DO NOT IN EXERCISE OF THE POWER UND ER ARTICLES 226 OF THE CONSTITUTION OF INDIA FIND ANY VALID REASONS OR JUSTIFICATION TO INTERFERE WITH THE COMPENSATORY FEES IMPOSED FOR LA TE FILING OF THE TDS RETURNS ON FLAT RATES. THE ABSENCE OF ANY PROV ISION FOR CONDONATION OF DELAY AND THE APPEAL PRIOR TO AMENDM ENTS ALSO DID NOT MAKE THE IMPOSITION OF LATE FEES BY SECTION 234 E TO BE ULTRA VIRES. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THE ASSESSING OFFICER U/S 234E R/W SECTION 200A OF THE ACT IN FORM NO. 35 CANNOT BE PRESUMED THAT THE ORDER HAS BEEN P ASSED U/S 234E R/W SECTION 200A OF THE ACT ITSELF, RATHER IT IS A N INTIMATION PASSED U/S 200A OF THE ACT; THAT THE LD. CIT (A) HAS NOT APPRE CIATED THE FACT THAT THE ASSESSING AUTHORITY COULD HAVE PASSED A SEPARAT E ORDER U/S 234E IN RESPECT OF LEVYING FEES FOR DELAY IN FILING THE STATEMENT U/S 200(3) OF THE ACT, HOWEVER, AFTER 01.06.2015, THE A. O IS WEL L WITHIN HIS POWERS TO ITA NO.2499/DEL/2016 4 LEVY FEES U/S 234 E OF THE ACT. EVEN WHILE PROCESS ING THE STATEMENT U/S. 200A, THE LEVYING OF LATE FEES U/S 200A OF THE ACT, MUCH BEFORE 01.06.2015 IS NOT JUSTIFIED AND AGAINST THE LAW. FO R THIS PURPOSE, HE RELIED ON THE ORDER OF ITAT, CHENNAI BENCH, IN THE CASE OF SMT. G INDRANI VS. DCIT (3), IN ITA NOS. 1019,1020,1021/ MDS / 2015 AND ITAT, AMRITSAR BENCH IN CASE OF SIBIA HEALTHCARE P RIVATE LTD. VS DCIT (2). 5. HAVING HEARD BOTH THE SIDES AND AFTER EXAMINING THE INTIMATION PASSED U/S 200A CAREFULLY, WE FIND THAT IT WAS AN I NTIMATION PASSED IN FORM NO. 35 AND NOT A SEPARATE ORDER, THE ASSESSING OFFICER WAS REQUIRED TO PASSED U/S 234E R/W SECTION 200 A OF TH E ACT. THUS, INTIMATION IN FORM NO. 35 CANNOT BE PRESUMED TO BE THE ORDER PASSED U/S 234 E OF THE ACT PERSE, RATHER IT IS AN INTIMAT ION PASSED U/S 200 A OF THE ACT. 6. THE ITAT, CHENNAI BENCH, IN THE CASE OF SMT. G INDRANI VS. DCIT (3),(SUPRA), CLEARLY HELD THAT IT IS OPEN TO THE ASSESSING OFFIC ER TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVY ING FEE PROVIDED THE LIMITATION FOR SUCH A LEVY HAS NOT EXPIRED. ACCORD INGLY, THE INTIMATION UNDER SECTION 200A AS CONFIRMED BY THE CIT (APPEALS ) IN SO FAR AS LEVY ITA NO.2499/DEL/2016 5 OF FEE UNDER SECTION 234E IS SET ASIDE AND FEE LEVI ED IS DELETED. THE RELEVANT PARAS ARE REPRODUCED BELOW: - 10. IT IS WELL KNOWN PRINCIPLE THAT THE FINE PRES CRIBED UNDER THE INDIAN PENAL CODE HAS TO BE LEVIED BY THE CONCERNED MAGIST RATE OR SESSION JUDGE WHO IS TRYING THE OFFENCE PUNISHABLE UNDER TH E INDIAN PENAL CODE. THEREFORE, THE CONTENTION OF THE LD. COUNSEL THAT M ERELY BECAUSE THE PARLIAMENTARY HAS USED THE LANGUAGE HE SHALL BE LI ABLE TO PAY BY WAY OF FEE, THE ASSESSEE HAS TO PAY THE FEEL VOLUNTARI LY AND THE ASSESSING OFFICER HAS NO AUTHORITY TO LEVY FEE COULD NOT BE A CCEPTED. NO ONE WOULD COME FORWARD TO PAY THE FEEL VOLUNTARILY UNLESS THE RE IS A COMPULSION UNDER THE STATUTORY PROVISION. THE PARLIAMENT WEL COMES THE CITIZENS TO COME FORWARD AND COMPLY WITH THE PROVISIONS OF THE ACT BY PAYING THE PRESCRIBED FEE BEFORE FILING THE STATEMENT UNDER SE CTION 200 (3) OF THE ACT. HOWEVER, IF THE ASSESSEE FAILS TO PAY THE FEE BEFORE FILING THE STATEMENT UNDER SECTION 200 (3) OF THE ACT, THE ASS ESSING AUTHORITY IS WELL WITHIN HIS LIMIT IN PASSING A SEPARATE ORDER LEVYIN G SUCH A FEE IN ADDITION TO PROCESSING THE STATEMENT UNDER SECTION 200 A OF THE ACT. IN OTHER WORDS, BEFORE 01.06.2015, THE ASSESSING AUTHORITY C OULD PASS A SEPARATE ORDER UNDER SECTION 234 E LEVYING FEE FOR DELAY IN FILING THE STATEMENT UNDER SECTION 200 (3) OF THE ACT. HOWEVER, AFTER 0 1.06.2015, THE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT TO LEV Y FEE UNDER SECTION 234 E OF THE ACT EVEN WHILE PROCESSING THE STATEMENT UN DER SECTION 200 A AND MAKING ADJUSTMENT. ITA NO.2499/DEL/2016 6 11. IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS EXCEEDED HIS JURISDICTION IN LEVYING FEE UNDER SECTION 234E WHILE PROCESSING THE STATEMENT AND MAKE ADJUSTMENT UNDER SECTION 200A OF THE ACT. THEREFOR E, THE IMPUGNED INTIMATION OF THE LOWER AUTHORITIES LEVYING FEE UND ER SECTION 234 E OF THE ACT CANNOT BE SUSTAINED IN LAW. HOWEVER, IT IS MAD E CLEAR THAT IT IS OPEN TO THE ASSESSING OFFICER TO PASS A SEPARATE ORDER U NDER SECTION 234 E OF THE ACT LEVYING FEE PROVIDED THE LIMITATION FOR SUC H A LEVY HAS NOT EXPIRED. ACCORDINGLY, THE INTIMATION UNDER SECTION 200 A AS CONFIRMED BY THE CIT (APPEALS) IN SO FAR AS LEVY OF FEE UNDER SECTION 234 E IS SET ASIDE AND FEE LEVIED IS DELETED. 7. T HAT ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SEC TION 234E WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTME NTS CONTEMPLATED UNDER SECTION 200A OF THE ACT BEFORE 0 1/06/2015. THE ISSUE IS WHETHER SUCH A LEVY COULD BE EFFECTED IN T HE COURSE OF INTIMATION UNDER SECTION 200A. THE ANSWER IS CLEAR LY IN NEGATIVE. NO OTHER PROVISION ENABLING A DEMAND IN RESPECT OF THI S LEVY HAS BEEN POINTED OUT TO US BY THE LD. DR AND IT IS THUS SETT LED LAW THAT IN THE ABSENCE OF THE ENABLING PROVISION UNDER SECTION 200 A, NO SUCH LEVY COULD BE EFFECTED. AS INTIMATION UNDER SECTION 200A , RAISING A DEMAND OR DIRECTING A REFUND TO THE TAX DEDUCTOR, CAN ONLY BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR WITHIN WHICH THE RELATED ITA NO.2499/DEL/2016 7 TDS STATEMENT IS FILED, AND AS THE RELATED TDS STAT EMENT WAS FILED ON 14TH OCTOBER, 2014, SUCH A LEVY COULD ONLY HAVE BEE N MADE AT BEST WITHIN 15 TH OCTOBER, 2015. THAT TIME HAS ALREADY ELAPSED AND THE DEFECT IS THUS NOT CURABLE EVEN AT THIS STAGE. IN V IEW OF THESE DISCUSSIONS, BEARING IN MIND ENTIRETY THE FACTS OF THE CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234E IS UNSUSTA INABLE IN LAW. 8. IN VIEW OF ABOVE, WE, ACCEPT THE GRIEVANCE OF TH E ASSESSEE AS JUSTIFIED AND DELETE THE IMPUGNED LEVY OF FEE UNDER SECTION 234E OF THE ACT. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 31/01/2018). SD/- SD/- (BEENA A. PILLAI) (DR. MITHA LAL MEENA) JUDICIAL MEMBER ACCOUNT ANT MEMBER DATED: 31/01/2018 *NEHA/DOC* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITA NO.2499/DEL/2016 8 DATE INITIAL 1. DRAFT DICTATED ON 29.01.2018 2. DRAFT PLACED BEFORE AUTHOR 30.01.2018 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.