G MANIKANDAN, KARAIKAL V. ITO TDS WARD, PUDUCHERRY

ITA 2547/CHNY/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7907 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 23-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B. SAGADEVAN
• Assessee Lawyers: A.S.SRIRAMAN
• Keywords: Retrospective amendment; Condonation of delay; TDS
• Section: 201(1); 234E; 200A; 201; 192; 73

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI , . , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.2547/CHNY/2017 / ASSESSMENT YEAR : 2015-16 MR.G.MANIKANDAN, M/S.GREEN WORLD GROUP, 5/6,A.MARIAMMAL KOIL STREET, KOTTUCHERRY, KARAIKAL 609 609 . VS. INCOME TAX OFFICER, TDS WARD, PONDICHERRY. [PAN CHEGI 1850 G] ( / APPELLANT) ( /RESPONDENT) ! ' # / APPELLANT BY : MR.A.S.SRIRAMAN,ADVOCATE $% ! ' # /RESPONDENT BY : MR.B.SAGADEVAN,JCIT,D.R & ' ' () / DATE OF HEARING : 31 - 12 - 201 8 * ' () / DATE OF PRONOUNCEMENT : 01 - 01 - 201 9 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-17, CHENN AI IN ITA NO.120/16-17/CIT(A)-17 DATED 30.06.2017 FOR THE ASSESSMENT YEAR 2015-16. ITA NO.2547 /CHNY/2017 :- 2 -: 2. MR.A.S.SRIRAMAN REPRESENTED ON BEHALF OF THE ASSESSEE AND MR.B.SAGADEVAN REPRESENTED ON BEHALF OF THE REVENUE. 3. THE APPEAL FILED BY THE ASSESSEE IS DELAYED BY 0 6 DAYS FOR WHICH THE ASSESSEE HAS FILED A CONDONATION PETITION EXPLAININ G THE REASONS FOR DELAY. THE LD.D.R DOES NOT RAISE ANY SERIOUS OBJECT ION IN RESPECT OF CONDONATION OF DELAY. FURTHER, IT IS NOTICED THAT THE REASONS EXPLAINED IN RESPECT OF CONDONATION OF DELAY IS REASONABLE AN D CONSEQUENTLY THE DELAY IN FILING THE APPEAL IS CONDONED AND THE APPE AL IS DISPOSED OF ON MERIT. 4. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD.A.R THAT THE ISSUE RAISED IN THIS APPEAL WAS SQUARELY COVERE D BY THE DECISION OF THE CO-ORDINATE A BENCH OF THIS TRIBUNAL IN THE C ASE OF M/S.KARUNA ELECTRICALS IN ITA NO.2327 TO 2333/CHNY/2018 DATED 12.12.2018 IN RESPECT OF LEVY OF FEE U/S.234E OF THE ACT. 5. IN REPLY, THE LD.D.R VEHEMENTLY SUPPORTED THE O RDER OF THE LD.CIT(APPEALS). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PE RUSAL OF THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN T HE CASE OF M/S.KARUNA ELECTRICALS IN ITA NO.2327 TO 2333/CHNY/ 2018 DATED ITA NO.2547 /CHNY/2017 :- 3 -: 12.12.2018 FOR ASSESSMENT YEARS 2014-15 TO 2016-17 REFERRED TO SUPRA SHOWS THAT THE TRIBUNAL HAS HELD AS FOLLOWS:- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUS AL OF THE GROUNDS OF APPEAL SHOWS THAT THE ASSESSEE HAS RELIE D ON THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF S MT.G.INDHIRANI IN ITA NOS.1019, 1020 & 1021/MDS./2015 DATED 10.07.2015 FO R ASSESSMENT YEAR 2013-14 WHEREIN THE TRIBUNAL HAS HELD AS FOLLOWS:- 11. IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL IS O F THE CONSIDERED OPINION THAT THE A.O HAS EXCEEDED HIS JU RISDICTION IN LEVYING FEE UNDER SECTION 234E WHILE PROCESSING THE STATEMENT AND MAKE ADJUSTMENT UNDER SECTION 200A OF THE ACT. THEREFORE, THE IMPUGNED INTIMATION OF THE LOWER AUTHORITIES LE VYING FEE UNDER SECTION 234E OF THE ACT CANNOT BE SUSTAINED IN LAW. HOWEVER, IT IS MADE CLEAR THAT IT IS OPEN TO THE ASSESSING OFFICER TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYIN G FEE PROVIDED THE LIMITATION FOR SUCH A LEVY HAS NOT EXPIRED. ACC ORDINGLY, THE INTIMATION UNDER SECTION 200A AS CONFIRMED BY THE C IT(APPEALS) IN SOFAR AS LEVY OF FEE UNDER SECTION 234E IS SET ASID E AND FEE LEVIED IS DELETED. HOWEVER, THE OTHER ADJUSTMENT MADE BY T HE ASSESSING OFFICER IN THE IMPUGNED INTIMATION SHALL STAND AS S UCH. HERE, WE HAVE TO MENTION THAT THE DECISION OF THE H ONBLE GUJARAT HIGH COURT IN THE CASE OF RAJESH KOURANI HAS NOT BEEN CO NSIDERED AS IT WAS NOT AVAILABLE AT THAT POINT OF TIME. THE CO-ORDINAT E BENCH OF AGRA BENCH IN THE CASE OF STATE BANK OF INDIA IN ITA NO.03,06, AND 07/AG./2018 FOR ASSESSMENT YEAR 2013-14 DATED 31.05.2018 BY CONSIDE RING THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF RA JESH KOURANI HAS HELD IN PARAS 8 TO 11 AS FOLLOWS:- 8. HEARD THE RIVAL CONTENTION AND PERUSED THE MAT ERIAL RELEVANT. WE FIND THAT WHILE DECIDING THE ISSUE AGAINST THE APPE LLANT ASSESSEE THE ID. CIT(A) HAS PLACED RELIANCE ON RAJESH KAURANI V S. UNION OF INDIA, 83 TAXMANNCOM 137 (GUJ.) WHEREIN IT WAS HELD THAT S ECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECH ANISM FOR PROCESSING A TDS STATEMENT OF DEDUCTION OF TAX AT S OURCE AND FOR MAKING ADJUSTMENT. THE LD. CIT(A) HAS FURTHER HELD THAT THIS DECISION WAS DELIVERED AFTER CONSIDERING NUMEROUS ITAT AND H IGH COURT DECISIONS AND THEREFORE THIS DECISION IN RAJESH KA URANI (SUPRA), HOLDS THE FIELDS. ITA NO.2547 /CHNY/2017 :- 4 -: 9. IT IS SEEN THAT PRIOR 01.06.2015, THERE WAS NO E NABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF L EVY OF FEE U/S 234E OF THE ACT. THE PROVISION OF SECTION 234E OF THE AC T IS CHARGING PROVISION I.E. SUBSTANTIVE PROVISION WHICH COULD NO T BE APPLIED RETROSPECTIVELY, UNLESS IT IS EXPRESSLY PROVIDED IN THE ACT, TO LEVY THE LATE FEE FOR ANY DELAY IN FILING THE TDS STATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. THE COUNSEL FOR THE ASSESSEE HAS RIGHTL Y CONTENDED THAT IN THE ABSENCE OF ENABLING PROVISIONS U/S 200A OF THE ACT, SUCH LEVY OF LATE FEE IS NOT VALID RELYING ON THE DECISIONS IN T HE CASES OF CIT VS. VATIKA TOWNSHIP PVT. LTD. (2014) 367 ITR 466 (SC), SUDARSHAN GOYAL VS DCIT (TDS) ITA NO.442/AGR/2017 AND FATEHRAJ SIN GHVI VS. UOI (2016) 289 CTR 0602 (KARN) (HC). THE DECISIONS RELI ED ON BY THE LD. DR ARE DISTINGUISHABLE ON FACTS, AS THE ISSUE INVOL VED IN THOSE CASES PERTAINS TO INTEREST U/S 201(1) AND 201(1A) ON THE AMOUNT OF TDS WHEREAS IN THE PRESENT CASES THE ISSUE WERE PERTAIN S TO LIABILITY OF LATE FEE U/S 234E OF THE ACT FOR DELAY IN FILING TDS STA TEMENT WHICH WAS INSERTED FROM 01.06.2015. 10. ON SIMILAR FACTS, WE HAVE DECIDED THE SAME ISS UE IN THE ASSESSEES OWN CASE SUDERSHAN GOYAL VS. DCIT (TDS) , IN ITA NO. 442/AGRA/2017 DTD. 09.04.2018 AUTHORED BY ONE O F US (THE LD. J.MJ. THE RELEVANT PART OF THE ORDER IS REPRODU CED AS FOLLOWS : 3. HEARD. THE ID. CIT(A), WHILE DECIDING THE MATTE R AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON RAJESH KAURANI VS . UOI, 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD TH AT SECTION 200A OF THE ACT IS A MACHINEIY PROVISION PROVIDING THE MECH ANISM FOR PROCESSING A STATEMENT OF DEDUCTION OF TAX AT SOURC E AND FOR MAKING ADJUSTMENTS. THE ID. CIT(A) HAS HELD THAT THIS DECI SION WAS DELIVERED AFTER CONSIDERING NUMEROUS ITAT/HIGH COURT DECISION S AND SO, THIS DECISION IN RAJESH KAURANI (SUPRA) HOLDS THE FIEL D. 4. WE DO NOT FIND THE VIEW TAKEN BY THE ID. CIT(A) TO BE CORRECT IN LAW. AS AGAINST RAJESH KAURANI (SUPRA), SHRI FATEHRAJ SINGHVI AND OTHERS VS. UOI, 73 TAXMANN.COM 252 (KER), AS ALSO ADMITTE D BY THE LD. CIT(A) HIMSELF DECIDES THE ISSUE IN FAVOUR OF THE ASSESSEE . THE ONLY OBJECTION OF THE ID. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TAKEN INTO CONSIDERATION BY THE HON BLE GUJARAL HIGH COURT WHILE PASSING RAJESH KAURANI (SUPRA). HOWEVER, WH ILE OBSERVING SO, THE ID. IT(A) HAS FAILED TO TAKE INTO CONSIDERATIO N THE SETTLED LAW THAT WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFER ENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS T O BE FOLLOWED. IT HAS SO BEEN HELD BY THE HON BLE SUPREME COURT IN CIT VS. VEGETABLE PRODUCTS LTD., 88 ITR 192 (SC). IT IS ALSO NOT A C ASE WHERE THE DECISION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURIS DICTIONAL HIGH COURT QUA THE ASSESSEE. ITA NO.2547 /CHNY/2017 :- 5 -: 5. IN SHRI FAREHRAJ SIN GHVI AND OTHERS (SUPRA) I T HAS BEEN HELD, INTER ALIA, AS FOLLOWS: 22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PE R THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE, UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY PROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UN DER THE CIRCUMSTANCES, WE FIND THAT SUBSTITUTION MADE BY CL AUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN BE READ AS HAVI NG PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFE CT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIM ATION FOR THE PAYMENT OFFEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPOND ENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1 .6.201 5. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAI D THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESA ID VIEW WILL NOT PERMIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNL ESS HE HAS MADE PAYMENT UNDER PROTEST. 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING SH RI FATEHRAJ SINGHVI AND OTHERS (SUPRA), SIBIA HEALTHCARE PVT. LTD. VS. DC IT (TDS), ORDER DATED 09.06.2015 PASSED IN JTA NO.90/ASR/20]5, FOR A.Y.20 ]3-14, BY THE AMRITSAR BENCH OF THE TRIBUNAL, AND SHRI KAUR CHAN D JAM VS. DGJT, CPC (TDS.) GHAZIABAD, ORDER DATED 15.09.2016, IN ITA NO.378/ASR/2015, FOR A.Y. 2012-13, THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JUSTIFIED. THE ORDER UNDER APPEAL IS RE VERSED. THE LEVY OF THE FEE IS CANCELLED. 11. IN THE ABOVE VIEW, RESPECTFULLY FOLLOWING SHRI FATEHRAJ SINGHVI AND ORS(289 CTR 602), SIBIA HEALTHCARE PVT LTD., VS.DC IT(ITA NO.90/ASR/2015), SHRI KAUR CHAND JAIN VS.DCIT(ITA N O.378/ASR/2015) AND OUR OWN FINDING IN THE CASE OF SUDERSHAN GOYAL (ITA NO.442/AGRA/2017 DT.9.4.2018), WE ACCEPT THE GRIEVA NCE OF THE ASSESSEE AS GENUINE. ACCORDINGLY, THE ORDERS OF THE CIT(A) ARE REVERSED AND THE FEE SO LEVIED U/S.234E OF THE ACT IS CANCEL LED. FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH O F AGRA BENCH IN THE CASE OF STATE BANK OF INDIA, THE CO-ORDINATE BENCH OF CHENNAI TRIBUNAL IN THE CASE OF SHRI ANIL BOHRA IN ITA NO.2 100 TO 2110/CHNY/2018 VIDE ORDER DATED 28.11.2018 HAS HELD THAT SINCE, THE D.R HAS NOT BROUGHT TO OUR NOTICE ANY DECISION RENDERED BY THE ITA NO.2547 /CHNY/2017 :- 6 -: JURISDICTIONAL HIGH COURT, QUA THE ISSUES, RESPECTF ULLY FOLLOWING THE ABOVE DECISIONS OF THE AGRA BENCH, THE ASSESSEES A PPEALS ARE ALLOWED . IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DE CISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF S HRI ANIL BOHRA REFERRED TO SUPRA ON IDENTICAL FINDINGS, THE LATE F EE LEVIED U/S.234E OF THE ACT STANDS CANCELLED. AS IT IS NOTICED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M /S.KARUNA ELECTRICALS IN ITA NO.2327 TO 2333/CHNY/2018 REFERRED TO SUPRA, THE LEVY OF LATE FEE U/S.234E OF THE ACT IN RESPECT OF ASSESSEE FOR ASSESSMENT YEAR 2015-16 STANDS DELETED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01 JANUARY, 2 019, AT CHENNAI. SD/ - SD/ - ( . ) (A.MOHAN ALANKAMONY) ! '# / ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) $ '# / JUDICIAL MEMBER - ' / CHENNAI . / DATED: 01 JANUARY, 2019. K S SUNDARAM / ' $(01 2 1( / COPY TO: 1 . ! / APPELLANT 3. & 3( () / CIT(A) 5. 145 $(6 / DR 2. $% ! / RESPONDENT 4. & 3( / CIT 6. 57 8' / GF