M/s. Office Of The District Prosecution Officer, Dewas V. ACIT (Centralized Processing Cell-TDS), Dewas

ITA 262/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3441 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 15-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PINKESH GH O TIA
• Keywords: TDS
• Section: 234E; 200A; 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.260 TO 262 IND/2019 ASSESSMENT YEARS: 2014-15 (24Q2), 2014- 15(24 Q-4), 2015-16 (24 Q-4) DISTRICT PROSECUTION OFFICER, VS. ACIT (TDS)-CPC DEWAS GHAZI ABAD TAN:BPLO00511A APPELLANT BY SHRI PINKESH GH O TIA, CA RESPONDENT BY SHRI ASHISH PORWAL, SR. DR ITA NOS.285 & 286 IND/2019 ASSESSMENT YEARS: 2016-17 (Q-3 24Q), 2016-17 (Q-1 24Q) DISTRICT PROSECUTION OFFICER, VS. ACIT (TDS)-CPC UJJAIN GHA ZIABAD TAN:BPLD00734G APPELLANT BY NONE RESPONDENT BY SHRI ASHISH PORWAL, SR. DR DATE OF HEARING: 2 0 . 0 2 .20 20 DATE OF PRONOUNCEMENT: 06 . 0 3 .2020 ITA NOS. 260 TO 262 & 285,286/IND/2019 DISTRICT PROSECUTION OFFICER 2 / O R D E R PER BENCH: THE ABOVE CAPTIONED BUNCH OF 5 APPEALS ARE AT THE INSTANCE OF RESPECTIVE ASSESSEES AND ARE DIRECTED AGAINST THE R ESPECTIVE ORDERS OF LD. COMMISSIONER OF INCOME TAX(APPEALS), (IN SH ORT CIT(A)). AS THE ISSUE RAISED IN ALL THESE APPEALS ARE SIMILAR, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. BRIEF FACTS COMMON IN ALL THESE APPEALS ARE THAT THE APPELLANT WAS REQUIRED TO FILE THE STATEMENT OF TAX DEDUCTED AT SOURCE FOR THE RESPECTIVE QUARTER BUT FAILED TO DO SO WITHIN THE D UE DATE PRESCRIBED IN THE LAW FOR FILING SUCH QUARTERLY TDS RETURNS. A S PER THE PROVISIONS OF SECTION 234E OF THE ACT, FEE FOR DEFA ULT IN FURNISHING THE STATEMENT IS LEVIABLE IF THE STATEMENT OF TDS A RE NOT DELIVERED WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SE CTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C OF THE A CT. 3. THE REVENUE AUTHORITIES HAVE LEVIED THE LATE FEE S FOR DEFAULT IN FURNISHING THE STATEMENT IN THE PROCESSING OF STATE MENT OF TAX DEDUCTED AT SOURCE PREPARED U/S 200A OF THE ACT. AG AINST THE LEVY OF LATE FEE U/S 234E IN THE STATEMENT PROCESSED U/S 200A OF THE ACT, APPEAL WAS PREFERRED BY THE ASSESSEE(S) FOR RE SPECTIVE QUARTERS FOR THE RESPECTIVE ASSESSMENT YEARS BEFORE LD. CIT( A) PLEADING THAT BEFORE THE AMENDMENT WAS BROUGHT IN BY THE FINANCE ACT, 2015 ITA NOS. 260 TO 262 & 285,286/IND/2019 DISTRICT PROSECUTION OFFICER 3 W.E.F. 01.06.2015, THE REVENUE AUTHORITIES WERE NOT HAVING THE POWER TO LEVY THE LATE FEES U/S 234E OF THE ACT IN THE STATEMENT PROCESSED U/S 200A OF THE ACT. 4. HOWEVER, ASSESSEE FAILED TO SUCCEED IN ALL THESE APPEALS BEFORE LD. CIT(A) AND NOW ARE IN APPEALS BEFORE THE TRIBUN AL RAISING THE ABOVE REFERRED COMMON ISSUE. 5. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE VEH EMENTLY ARGUED SUPPORTING WRITTEN SUBMISSION MADE BEFORE LD. CIT(A ) CONTENDING THAT BEFORE 1.6.15 REVENUE AUTHORITIES HAVE NO POWE R TO LEVY PENALTY U/S 234E OF THE ACT IN THE ORDER OF PROCESSING TDS FILED BY THE ASSESSEE. 6. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) VEHEMENTLY ARGUED SUPPORTED THE ORDERS OF BOTH THE LOWER AUTHO RITIES. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. 8. FROM PERUSAL OF THE GROUNDS WE FIND THAT ONLY ON E ISSUE NEEDS TO BE ADJUDICATED AS TO WHETHER THE REVENUE AUTHORITIE S WERE JUSTIFIED IN LEVYING THE LATE FEES U/S 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE U/S 200A OF THE ACT AFTER THE AMENDMENT WAS BROUGHT IN W.E.F. 01.06.2015 IN THE PROVISIONS OF SECTION 200A OF THE ACT. THE COMMON FACT IN ALL THE SE CASES IS THAT THE DATE OF FILING TDS RETURN AS WELL AS DATE OF CE NTRALIZED ITA NOS. 260 TO 262 & 285,286/IND/2019 DISTRICT PROSECUTION OFFICER 4 PROCESSING CENTRE (IN SHORT `CPC) ORDER IS AFTER 0 1.06.2015. WE OBSERVE THAT RECENTLY COORDINATE BENCH OF JAIPUR IN THE CASE OF SHRI UTTAM CHAND GANGWAL VS ACIT IN ITA NO. 764/JP/2017 DATED 23/01/2019 ADJUDICATED THE SIMILAR ISSUE OF LEVY OF FEE U/S 234E OF THE ACT IN THE CASE WHERE TDS RETURN AND THE CPC OR DER WAS PASSED AFTER 01.06.2015. FOLLOWING DECISION WAS REN DERED BY THE COORDINATE BENCH: IN THE INSTANT CASE, THE ASSESSEE FILED ITS TDS RET URN IN FORM NO. 26Q FOR THE QUARTER ENDED 31ST MARCH, 2015 ON 22ND JULY, 2 015 AND THE SAME WAS PROCESSED AND AN INTIMATION DATED 30 JULY, 201 5 WAS ISSUED BY THE AO U/S 200 A OF THE ACT . THUS, BOTH THE FILING OF THE RETURN OF INCOME BY THE ASSESSEE AND PROCESSING THEREOF HAS HAPPENED MU CH AFTER 1.6.2015 I.E, THE DATE OF ASSUMPTION OF JURISDICTION BY THE AO U/S 200A(1)(C) TO LEVY FEES UNDER SECTION 234E OF THE ACT. EVEN THOUGH THE QUARTERLY RETURN PERTAINS TO QUARTER ENDED 31.3.2015, THE FAC T REMAINS THAT THERE IS A CONTINUING DEFAULT EVEN AFTER 1.6.2015 AND THE RET URN WAS ACTUALLY FILED ON 22.07.2015. THE SAID PROVISIONS CANNOT BE READ TO S AY THAT WHERE AN ASSESSEE FILE HIS RETURN OF INCOME FOR THE PERIOD FALLING AFTER 1.6.2015 AND THERE IS A DELAY ON HIS PART TO FILE THE RETUR N IN TIME, HE WILL SUFFER THE LEVY OF FEES, HOWEVER, AN ASSESSEE WHO HAS DEL AYED THE FILING OF THE RETURN OF INCOME EVEN PERTAINING TO THE PERIOD PRI OR TO 1.06.2015, HE CAN BE ABSOLVED FROM SUCH LEVY EVEN THOUGH THERE IS A C ONTINUOUS DEFAULT ITA NO. 764/JP/2017 SHRI UTTAM CHAND GANGWAL, AJMER VS. ACIT, GHAZIABAD ON HIS PART EVEN AFTER 1.6.2015. IN OUR VIEW, THE AO HAS ACQUIRED THE JURISDICTION TO LEVY THE FEES AS ON 1.06.2015 AND T HEREFORE, ANY RETURN FILED AND PROCESSED AFTER 1.6.2015 WILL FALL WITHIN HIS J URISDICTION WHERE ON OCCURRENCE OF ANY DEFAULT ON PART OF THE ASSESSEE, HE CAN LEVY FEE SO MANDATED U/S 234E OF THE ACT. THEREFORE, IRRESPECTI VE OF THE PERIOD TO ITA NOS. 260 TO 262 & 285,286/IND/2019 DISTRICT PROSECUTION OFFICER 5 WHICH THE QUARTERLY RETURN PERTAINS, WHERE THE RET URN IS FILED AFTER 1.6.2015, THE AO CAN LEVY FEE UNDER SECTION 234E OF THE ACT. AT THE SAME TIME, IN TERMS OF DETERMINING THE PERIOD FOR WHICH FEES CAN BE LEVIED, ONLY SAVING COULD BE THAT FOR THE PERIOD OF DELAY FALLIN G PRIOR TO 1.06.2015, THERE COULD NOT BE ANY LEVY OF FEES AS THE ASSUMPTION OF JURISDICTION TO LEVY SUCH FEES HAVE BEEN HELD BY THE COURTS TO BE PROSPECTIVE IN NATURE. HOWEVER, WHERE THE DELAY CONTINUES BEYOND 1.06.2015, THE AO IS WELL WITHIN HIS JURISDICTION TO LEVY FEES UNDER SECTION 234E FOR THE PERIOD STARTING 1.06.2015 TO THE DATE OF ACTUAL FILING OF THE TDS RETURN. IN LIGHT OF THE SAME, IN THE INSTANT CASE, THE LEVY OF FEES UNDER SECTION 234E IS UPHELD FOR THE PERIOD 1.06.2015 TO THE DATE OF ACTUAL FILING O F THE TDS RETURN WHICH IS 22.07.2015 AND THE BALANCE FEE SO LEVIED IS HEREBY DELETED. IN THE RESULT, THE GROUND OF APPEAL IS PARTLY ALLOWED. 9. FROM PERUSAL OF THE ABOVE DECISION WE FIND THAT THE ISSUE BEFORE US IS SIMILAR TO THE ISSUE ADJUDICATED BY THE COORDINATE BENCH AND THEREFORE RESPECTFULLY FOLLOWI NG THE DECISION OF COORDINATE BENCH RENDERED ON 23.01.2019 IN THE CASE OF SHRI UTTAM CHAND GANGWAL (SUPRA) ARE OF THE CONSIDERED VIEW THAT THOUGH LEVY OF FEE U/S 234E HA VE BEEN VALIDLY LEVIED BY THE CPC WHICH WAS CONFIRMED BY LD. CIT(A) HOWEVER THE SAME SHOULD HAVE BEEN LEVIED FOR THE PERIOD COMMENCING FROM 1.6.2015. WE THEREFORE DIRECT THE REVENUE AUTHORITIES TO MAKE NECESSARY ITA NOS. 260 TO 262 & 285,286/IND/2019 DISTRICT PROSECUTION OFFICER 6 VERIFICATION IN EACH OF THE CASE SO AS TO LOOK INTO THE FACT THAT IN CASE IF ANY FEE U/S 234E IS LEVIED FOR THE DELAY IN FILING RETURN FOR THE PERIOD BEFORE 01.06.2015, THE SAME IS DIRECTED TO BE DELETED AND THE REMAINING FEE LEVIED FOR THE DEFAULT COMMITTED FROM 01.06.2015 ONWARDS NEEDS TO BE CONFIRMED. 10. IN THE RESULT APPEALS NO. ITA/260 TO 262/IND/2 019 & ITA/285 & 286/IND/2019 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 06.03.20 20. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 06 MARCH,2020 /DEV COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE