M/S Good Health Food Pvt., Ltd., Ranchi V. ACIT, Centralised Processing Cell-TDS, Ghaziabad

ITA 257/RAN/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9753 (ITAT-RANCHI)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 30-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDAN DAS J
• Keywords: Retrospective amendment; TDS
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH SMC RANCHI BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.21-24/RAN/2017 ASSESSMENT YEAR:2013-14 SHREE BALAJI STEEL WORKS MARWARI PARA ROAD, JUGSALAI, JAMSHEDPUR-831006 [ PAN NO. ABBFS 3293 H ] / V/S . ACIT, CPC, GAZIABAD /APPELLANT .. /RESPONDENT /BY ASSESSEE NONE /BY REVENUE SHRI CHANDAN DAS, JCIT-DR ITA NO.250-251/RAN/2018 ASSESSMENT YEAR:2013-14 (Q4-26Q)(Q-3-24Q) M/S COMPREHENSIVE NEOMARKETING SYSTEM PVT. LTD. RATTANLALL SURAJMULL COMPOUND, C.N. TOWER, 56- MAIN ROAD, RANCHI-834001 [ PAN NO. AAECC 1221 E ] / V/S . ACIT, CENTRALLISED PROCESSING CELL-TDS, AAYAKAR BHAWAN, SESCTORO-3, VAISHALI, GHAZIABAD, U.P. 201010 /APPELLANT .. /RESPONDENT ITA NO.252-255/RAN/2018 ASSESSMENT YEAR:2013-14 (Q2-26Q)(Q-2-24Q) ASSESSMENT YEAR:2014-15 (Q2-26Q)(Q1-26Q) C.N. AUTOMOBILES RATTANLALL SURAJMULL COMPOUND, C.N. TOWER, 56- MAIN ROAD, RANCHI-834001 [ PAN NO. AAHFC 9438 P ] / V/S . ACIT, CENTRALLISED PROCESSING CELL-TDS, AAYAKAR BHAWAN, SESCTORO-3, VAISHALI, GHAZIABAD, U.P. 201010 ITA NO.21-24/R/17, 250-259/R/18 AYS 13-14 SHRI BALAJI STEEL WORKS, M/S COMPREHENSIVE NEOMARKETI NG SYSTEM P. LTD, C.N. AUTOMOBILES & M/S GOOD HEALTH FO OD P LTD. VS. ACIT TDS UP PAGE 2 /APPELLANT .. /RESPONDENT ITA NO.256-259/RAN/2018 ASSESSMENT YEAR:2013-14 (Q3-24Q)(Q-4-24Q) (Q4-26Q) M/S GOOD HEALTH FOOD PVT. LTD. RATTANLALL SURAJMULL COMPOUND, C.N. TOWER, 56- MAIN ROAD, RANCHI-834001 [ PAN NO. AAACG 5287 E ] / V/S . ACIT, CENTRALLISED PROCESSING CELL-TDS, AAYAKAR BHAWAN, SESCTORO-3, VAISHALI, GHAZIABAD, U.P. 201010 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI DEVESH PODDAR, ADVOCATE /BY REVENUE SHRI CHANDAN DAS, JCIT-DR /DATE OF HEARING 11-01-2019 /DATE OF PRONOUNCEMENT 15-02-2019 /O R D E R THESE SET OF FOURTEEN APPEAL(S) FILED BY THE VARIO US ASSESSEES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-JAMSHEDPUR & C IT(A)-RANCHIS SEPARATE ORDER(S), CHALLENGES CORRECTNESS OF THE LOWER AUTHO RITIES ACTION LEVYING LATE FEE INVOLVING PROCEEDINGS U/S 243E OF THE INCOME TAX AC T, 1961; IN SHORT THE ACT. 2. I FIND THAT ALL THESE CASES RAISE A COMMON QUEST ION OF APPLICABILITY OF SEC. 234E LATE FEE BEFORE 01.06.2015 I.E. THE RELEVANT DATE O F AMENDMENT IN SEC.200A OF THE ACT, I THEREFORE PROPOSE TO DECIDE ALL THESE CASES VIDE ITS INSTANT COMMON ORDER. HEARD ALL THE ASSESSEES AS WELL AS REVENUE. CASE F ILE(S) PERUSED. 3. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THIS TRIBUNALS VARIOUS DECISIONS I.E. SIBIA HEALTHCARE PVT. LTD. VS. DCIT (2015) 121 DTR 81 (ASR) (TRIB) AND G INDHIRANI VS. DCIT (2015) 43 CCH 511 (CHEN-TRIB) HOLD THAT THE IMPUG NED LATE FILING FEE DOES NOT APPLY IN CASE OF ASSESSMENT YEA R(S) PRIOR TO 01.06.2015 OR IT DOES NOT CARRY RETROSPECTIVE OPERATION IN OTHER WORDS. THE CIT(A) IN THESE ALL CASES HOLD ITA NO.21-24/R/17, 250-259/R/18 AYS 13-14 SHRI BALAJI STEEL WORKS, M/S COMPREHENSIVE NEOMARKETI NG SYSTEM P. LTD, C.N. AUTOMOBILES & M/S GOOD HEALTH FO OD P LTD. VS. ACIT TDS UP PAGE 3 THAT HON'BLE GUJARAT HIGH COURTS DECISION IN RAJESH KAURANI VS. UNION OF INDIA 83 TAXMANN.COM 137 (GUJ) CONFIRMS LATE FEE LEVY U/S 23 4E TO BE WITH RETROSPECTIVE EFFECT. THE CIT(A) THEREFORE APPEARS TO HAVE GONE B Y THE HON'BLE GUJARAT HIGH COURTS DECISION TO AFFIRM THE ASSESSING OFFICERS ACTION I N ALL THESE CASES. I NOTICE IN THIS BACKDROP OF FACTS THAT THIS TRIBUNALS YET ANOTHER CO-ORDINATE BENCHS DECISION IN STATE BANK OF INDIA VS. ITO (TDS) ITA NO.03, 06-07/AGR/20 18 AND OTHER GROUP CASES DECIDED ON 31.05.2018 HAS CONSIDERED HON'BLE GUJARA T HIGH COURTS JUDGMENT TO ONCE AGAIN DECIDE THIS VERY ISSUE IN ASSESSEES FAVOUR AS FOLLOWS: 4. SINCE A COMMON ISSUE IS INVOLVED IN ALL THESE AP PEALS RELATING TO LEVY OF LATE FILING FEE U/S 234E OF THE ACT, THEY ARE BEING DISP OSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 5. IN THESE CASES, THE APPELLANTS HAVE DEPOSITED TD S IN CENTRAL GOVERNMENT ACCOUNT AS PER TDS PROVISIONS OF THE ACT. THEY ARE REQUIRED TO FILE QUARTERLY TDS RETURNS (STATEMENTS) INTIMATING THE TAX DEDUCTE D AT SOURCE FROM VARIOUS PAYMENTS MADE TO VARIOUS PERSONS IN EACH QUARTERS F OR THE FINANCIAL RELEVANT. TO ENSURE TIMELY COMPLIANCE ON THE PART OF THE DEDU CTORS, THE PROVISIONS FOR LATE FILING FEE U/S 234E HAS BEEN INSERTED IN CLAUS E (C) TO SECTION 200A OF THE ACT BY THE FINANCE ACT, 2015, W.E.F 1.06.2015. BEF ORE THE ID. CITCA), THESE APPELLANTS CONTENDED THAT BEFORE MAKING NECESSARY A MENDMENT IN SECTION 200A OF THE ACT W.E.F. 01.06.2015, THERE WAS NO ENA BLING PROVISIONS U/S 200A OF THE ACT FOR RAISING DEMAND IN RESPECT OF LEVY OF PENALTY U/S 234E OF THE ACT AND THUS IN THE ABSENCE OF ENABLING PROVISION FOR M AKING SUCH ADJUSTMENT FOR LEVYING LATE FEE U/S 234E, NO SUE; LATE FEE COULD B E IMPOSED BY THE AO. IN SUPPORT, THE COUNSEL FOR THE APPLICANTS PLACED RELI ANCE ON THE DECISION IN THE CASES OF SIBIA HEALTHCARE PVT. LTD. VS. DCIT (TDS) (2015) 121 DTR 81 (ASR) (TRIB) AND G INDHIRANI VS. DCIT (2015) 43 CCH 511 (CHEN-TRIB) WHEREIN IT WAS HELD THAT IN THE ABSENCE OF ENABLING PROVISIONS U/S 200A OF THE ACT, SUCH LEVY OF LATE FEE IS NOT VALID. THE ID. CIT(A) HAS R EJECTED THIS CONTENTION OF THE APPELLANTS BY RELYING ON THE DECISION IN THE CASE O F RAJESH KAURANI VS. UNION OF INDIA , 83 TAXMANN.COM 137(GUJ) AND CONFIRMED THE LEVY OF LATE FEE U/S 234E OF THE ACT. AGGRIEVED, APPELLANTS ARE IN APPEAL BEF ORE US. 6. THE COUNSEL FOR THE ASSESSEE HAS SUBMITTED A STA TEMENT OF TDS RETURNS (APB, PGE. 5-9) CONTENDING THAT ALL THE TDS RETURNS STATE MENTS HAS BEEN FILED ARE IN RESPECT OF THE PERIOD PRIOR TO THE DATE 01.06.2015 I.E. THE DATE FROM WHICH CLAUSE (C) TO SUB SECTION (1) OF SECTION 200A WAS I NSERTED AND INCORPORATING SECTION 234E OF THE ACT, 1961. HE FURTHER SUBMITTED THAT PRIOR 01.06.2015, THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U/S 234E OF THE ACT. THE PRO VISION OF SECTION 234E OF THE ACT IS CHARGING PROVISION I.E. SUBSTANTIVE PROVISIO N WHICH COULD NOT BE APPLIED RETROSPECTIVELY, UNLESS IT IS EXPRESSLY PROVIDED IN THE ACT, TO LEVY THE LATE FEE ITA NO.21-24/R/17, 250-259/R/18 AYS 13-14 SHRI BALAJI STEEL WORKS, M/S COMPREHENSIVE NEOMARKETI NG SYSTEM P. LTD, C.N. AUTOMOBILES & M/S GOOD HEALTH FO OD P LTD. VS. ACIT TDS UP PAGE 4 FOR ANY DELAY IN FILING THE TDS STATEMENT FOR THE P ERIOD PRIOR TO 01.06.2015. FOR THIS PURPOSE, THE APPELLANT RELY ON THE FOLLOWI NG DECISIONS: I) CIT VS. VATIKA TOWNSHIP PVT. LTD. (2014) 367 ITR 466 (SC). II) SUDARSHAN GOYAL VS DCIT (TDS)' ITA NO.442/AGR/2 017. III) FATEHRAJ SINGHVI VS. UDI (2016) 289 CTR 0602 ( KARN) (HC) IV) SIBIA HEALTHCARE PVT. LTD. VS. DOT (TDS) ITA NO .90/ASR/2015. V) SHRI KAUR CHAND JAIN VS. DCIT', ITA NO.378/ASR /2015. VI) GAJANAN CONSTRUCTIONS VS. DCIT' (2016) 161 IT D 313 (PUNE). 7. PER CONTRA, THE LD. DR SUPPORTED THE IMPUGNED OR DER WITH THE SUPPORT OF A BRIEF SYNOPSIS OF CASE LAWS. 8. HEARD THE RIVAL CONTENTION AND PERUSED THE MATER IAL RELEVANT. WE FIND THAT WHILE DECIDING THE ISSUE AGAINST THE APPELLANT ASSE SSEE THE LD. CIT(A) HAS PLACED RELIANCE ON RAJESH KAURANI VS. UNION OF INDIA , 83 TAXMANN.COM 137 (GUJ.) WHEREIN IT WAS HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A TDS STATEMENT OF DEDUCTION OF TAX AT SOURCE AND FOR MAKING ADJUSTMEN T. THE LD. CIT(A) HAS FURTHER HELD THAT THIS DECISION WAS DELIVERED AFTER CONSIDERING NUMEROUS ITAT AND HIGH COURT DECISIONS AND THEREFORE THIS DECISIO N IN RAJESH KAURANI (SUPRA), HOLDS THE FIELDS. 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 LEVY OF F EE U/S 234E OF THE ACT. THE PROVISION OF SECTION 234E OF THE ACT IS CHARGING PR OVISION I.E. SUBSTANTIVE PROVISION WHICH COULD NOT BE APPLIED RETROSPECTIVEL Y, UNLESS IT IS EXPRESSLY PROVIDED IN THE ACT, TO LEVY THE LATE FEE FOR ANY D ELAY IN FILING THE TDS STATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. THE C OUNSEL FOR THE ASSESSEE HAS RIGHTLY CONTENDED THAT IN THE ABSENCE OF ENABLING P ROVISIONS U/S 200A OF THE ACT, SUCH LEVY OF LATE FEE IS NOT VALID RELYING ON THE DECISIONS IN THE CASES OF CIT VS. VATIKA TOWNSHIP PVT. LTD. (2014) 367 ITR 46 6 (SC), SUDARSHAN GOYAL VS DCIT (TDS) ITA NO.442/AGR/2017 AND FATEHRAJ SINGHVI VS. UOI (2016) 289 CTR 0602 (KARN) (HC). THE DECISIONS RELIED ON B Y THE LD. DR ARE DISTINGUISHABLE ON FACTS, AS THE ISSUE INVOLVED 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 PERTAINS TO LIABILITY OF LATE FEE U/S 23 4E OF THE ACT FOR DELAY IN FILING TDS STATEMENT WHICH WAS INSERTED FROM 01.06.2015. 10. ON SIMILAR FACTS; WE HAVE DECIDED THE SAME ISSU E IN THE ASSESSEE'S OWN CASE SUDERSHAN GOYAL VS. DOT (TDS) IN ITA NO. 442/AGRA/2017 DTD. 09.04.2018 AUTHORED BY ONE OF US (THE LD. J.M.). THE RELEVANT PART OF THE ORDER IS REPRODUCED 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 ITA NO.21-24/R/17, 250-259/R/18 AYS 13-14 SHRI BALAJI STEEL WORKS, M/S COMPREHENSIVE NEOMARKETI NG SYSTEM P. LTD, C.N. AUTOMOBILES & M/S GOOD HEALTH FO OD P LTD. VS. ACIT TDS UP PAGE 5 THE ACT IS A MACHINERY 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 FIELD . 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 SI NGHVI AND OTHERS VS. UOI, 73 TAXMANN.COM 252 (KER), AS ALSO ADMITTED BY THE ID. CIT(A) HIMSELF, DECIDES THE ISSUE IN FAVOUR OF THE ASSESSE E. THE ONLY OBJECTION OF THE ID. CIT(A) IS THAT THIS DECISION END OTHERS TO THE SAME EFFECT HAVE BEEN TAKEN INTO CONSIDERATION BY THE HON'BLE GUJARA T HIGH COURT WHILE PASSING RAJESH KAURANI (SUPRA). HOWEVER, WHILE OBSE RVING SO, THE ID. CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE SE TTLED LAW THAT WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFERENT HI GH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLO WED. IT HAS SO BEEN HELD BY THE HON'BLE SUPREME COURT IN CIT VS. VEGETA BLE PRODUCTS LTD. 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DE CISION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HI GH COURT QUA THE ASSESSEE. 5. IN SHRI FATEHRAJ SINGHVI AND OTHERS' (SUPRA) IT 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 CLAUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFE CT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE D EMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCIS E OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR THE PERIOD OF TH E RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WILL NOT PERMIT THE DEDUCT OR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST. ' 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING SHR I FATEHRAJ SINGHVI AND OTHERS' (SUPRA), SIBIA HEALTHCARE PVT. LTD. VS. DCI T (TDS)', ORDER DATED 09.06.2015 PASSED IN ITA NO.90/ASR/2015, FOR A.Y.20 13-14, BY THE AMRITSAR BENCH OF THE TRIBUNAL, AND SHRI KAUR CHAND JAIN VS. DCIT, CPC (TDS) GHAZIABAD', ORDER DATED 15.09.2016, IN ITA NO.378/A SR/2015, FOR A.Y. 2012- /3, THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JU STIFIED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CANCELLED. ITA NO.21-24/R/17, 250-259/R/18 AYS 13-14 SHRI BALAJI STEEL WORKS, M/S COMPREHENSIVE NEOMARKETI NG SYSTEM P. LTD, C.N. AUTOMOBILES & M/S GOOD HEALTH FO OD P LTD. VS. ACIT TDS UP PAGE 6 11. IN THE ABOVE VIEW, RESPECTFULLY FOLLOWING SHRI FATEHRAJ SINGHVI AND ORS (SUPRA), SIBIA HEALTHCARE PVT. LTD. VS. DCIT (SUPRA ), 'SHRI KAUR OLAND JAIN VS. DCIT', (SUPRA), AND OUR OWN FINDING IN THE CASE OF SUDERSHAN GOYAL (SUPRA), WE ACCEPT THE GRIEVANCE OF THE ASSESSEES AS GENUINE . ACCORDINGLY, THE ORDERS OF THE CIT(A) ARE REVERSED AND THE FEE SO LEVIED UNDER SECTION 234E OF THE ACT IS CANCELLED. 4. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO IND ICATE ANY DISTINCTION ON FACTS OR LAW DURING THE COURSE OF HEARING. I THEREFORE AC CEPT ALL ASSESSEES SOLE SUBSTANTIVE GROUND RAISED IN THE INSTANT BATCH OF CASES CHALLEN GING CORRECTNESS OF SEC. 234E LATE FILING FEE. 5. THESE ASSESSEES APPEAL(S) ARE ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN ACCORDANCE WITH RULE 34(4) OF T HE ITAT RULES BY PUTTING ON NOTICE BOARD ON 15/02/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R RANCHI, *DKP/SR.PS ' - 15/02/2019 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SHREE BALAJI STEEL WORKS MARWARI PARA ROA D, JUGSALAI, JAMSHEDPUR-831006/M/ S COMPREHENSIVE NEOMARKETING SYSTEM PVT. LTD./C.N. AUTOMO BILES/ M/S GOOD HEALTH FOOD PVT. LTD. RATTANLALL SURAJMUILL COMPOUND, C.N.TOWER, 56-MAIN ROAD RANCHI-834001 2. /REVENUE-ACIT, CPC,GASZIABAD/ACIT, CENTRALLISED PRO CESSING CELL-TDS AAYAKAR BHAWAN, SECTOR -3, VAISHALI, GHAZIABAD, UP-201010 3. ' ) / CONCERNED CIT 4. ) - / CIT (A) 5. * --' , ' / DR, ITAT, RANCHI 6. / / GUARD FILE. BY ORDER/ , SR. PRIVATE SECRETARY/P.S ',