SANT SOLDIER ENGINEERS AND CONTRCTORS PRIVATE LIMITED, JALANDHAR V. DEPUTY COMMISSIONER OF INCOME TAX .CPC-TDS, GHAZIBAD

ITA 28/ASR/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7079 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 09-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause; Condonation of delay; TDS
• Section: 250; 234E; 200A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER I.T.A Nos. 26 to 30/ASR/2021 (ASSESSMENT YEARS: 2013-14 & 2014-15) Saint Soldier Engineers and Contractors Pvt. Ltd., 378 Lajpat Nagar, Jalandhar, Punjab – 144 001 [PAN: AAHCS 0525L] (Assessee) Vs. Dy. Commissioner of Income Tax, CPC-TDS, Ghaziabad Aayakar Bhavan, Sector-3, Vaishali, Ghaziabad, Uttar Pradesh 201010 (Revenue) Assessee by Sh. Abhinav Vijh, C. A. Revenue by Sh. S. M. Surendranath, D. R. Date of Hearing 30.11.2021 Date of Pronouncement 03.12.2021 ORDER Per Bench: These appeals are filed by the assessees feeling aggrieved by the order of Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi for the Assessment Years 2013-14 & 2014-15 u/s. 250 of the Income Tax Act, 1961 (hereinafter referred as the ‘the Act’). I.T.A Nos. 26 to 30/ASR/2021 2 2. The assessee has raised the following grounds of appeal in ITA Nos. 26 to 30/Asr/2021: “1. That on the facts and circumstances of the case and in law, the impugned order dated 10.03.2021 passed by CIT(Appeals), National Faceless Appeal Centre is perverse and erroneous order hence, liable to be quashed. 2. That on the facts and circumstances of the case and in law, the CIT(Appeals) has erred in not condoning the delay in filing of appeal dismissing the appeal as unadmitted. 3. That on the facts and circumstances of the case the CIT(A) has erred in not exercising the discretion vested upon him by virtue of section 249 of the Act, reasonably and in accordance with the settled legal principles enabling condonatioin of delay in filing of statutory appeals. 4. That on the facts and circumstances of the case in law, the CIT(A) has erred in dismissing the appeal filed by the assessee without refuting the facts stated by the assessee in a affidavit explaining the delay. 5. That on facts and circumstances of the case and in law the CIT(A) while adjudicating the application for condonation of delay in filing ought to have considered that on merits order passed by CPC (TDS) are illegal having being passed beyond the time limit stipulated in proviso to section 200A(1) and assessee would not have benefited from delaying the process of filing the appeal. 6. That on the facts and circumstances of the case and in law, the impugned order has been passed in haste, without providing sufficient and reasonable opportunity of being heard and in violation of principles of natural justice and thus liable to be quashed. I.T.A Nos. 26 to 30/ASR/2021 3 7. That on the facts and circumstances of the case and in law, the order dated 29.08.2016 passed by the CPC TDS u/s 200(A) of the Act is a vitiated order having been passed in an arbitrary manner and is thus bad in law and void ab- initio and also the fees of Rs.18,400/- levied therein is illegal, bad in law and without jurisdiction. 8. That in view of the facts and circumstances of the case and in law, the impugned order deserves to be quashed as the same is barred by limitation, having been passed beyond the time limit stipulated in proviso to section 200A(1). 9. That in view of the facts and circumstances of the case the CIT(Appeals) have failed to appreciate that the power to collect the fees has been vested in prescribed authority only by way of substitution of clause (c) to section 200A(1) of the Act by the Finance Act, 2015 w.e.f. 01.06.2015. As such, prior to said substation, CPC TDS had no authority to charge the fees undere section 234E of the Act while issuing intimation under section 200A for TDS return filed for the period before 01.06.2015 and henceforth levy of fees u/s 234E in the case is without jurisdiction. 10. That both the lower authorities have failed to note that the insertion of clause (c) to (f) of section 200A(1) of the Act is prospective in nature. 11. The Appellant craves leave to add, to alter to amend the above ground of appeal at the time of hearing.” 3. Following common ground of appeal nos. 1 to 6 and 7 to 10 have been raised in all the appeals. Ground no. 8 has been raised for ITA Nos. 26 to 30/Asr.2021. I.T.A Nos. 26 to 30/ASR/2021 4 4. From perusal of the above grounds we find that grievance of the assessee is mainly towards levy of fee u/s 234E for delay in submission of quarterly returns. 5. Brief facts of the case culled out from the records are that the assessee filed quarterly return pertaining to financial year 2012-13 & 2013-14 which are belated and subsequently reteurns were processed u/s 200A of the Act by Centralized Processing Centre (TDS) and fee u/s 234E was levied for the delay in filing the quarterly returns. Assessee carried the matter before the Ld. CIT(A) but failed to succeed as the appeals were time barred and Ld. CIT(A) did not condone the delay and there was no finding on merits of the case. 6. Aggrieved the assessee is now in appeal before this Tribunal raising various common issues, Ld. Counsel for the assessee vehemently argued referring to the written submission dated 30.11.2021 and also reference was made to the paper book containing 17 pages and also placed. Reliance on various decision in favour of the assessee towads condonation of delay as well as on merits of the case. In short the arguments of the Ld. Counsel are three fold: (1) Ld. CIT(A) failed to condone the delay ignoring the fact that the matter related to TDS were dealt by Mr.Vipan Sharma aged 63 years who was not well versed with the technical advancement and online return filing and processing. Also Vipan Sharma left the job and the assessee came to know about the order processing u/s 200(A) after a lapse of considerable which resulted in delay in filing the appeal. I.T.A Nos. 26 to 30/ASR/2021 5 (2) Appeals for the quarterly return of financial year 2013-14 raised in ITA Nos. 26 to 30/Asr/2021 deserves to be allowed as the order u/s 200(A) were time barred by limitation. (3) Fee u/s 234E levied for delay in quarterly returns filed for financial 2014-15 in ITA Nos. 29 & 30/Asr/2021 deserves to be deleted as return were processed before the amendment brought in by the Finance Act in section 200(A) effective from 1 st June, 2015 enabling the Assessing Officer to levy fee u/s 234E. 7. Per contra, Ld. Departmental Representative vehemently argued and supporting the order and for condonation of delay before the Ld. CIT(A). 8. We have heard the rival contention and persued the record placed before us and carefully gone through the decision referred in by the Ld. Counsel for the assessee. In the instant appeals sole grievance of the assessee is against the levy of fee u/s 234E of the Act for belatedly filing the quarterly TDS returns. 9. As far as the common issue raised in ground nos. 3 to 6 of the instant appeals challenging the finding of the Ld. CIT(A) not condoning the delay and not adjudicating the issue on merits is concerned we find that the assessee is a Private Company Ltd. and the matters relating to the TDS return filing and other connected issues were dealt by Mr. Vipan Sharma aged 63 years. He was handling the matter from 2012 till 2020. Affidavit filed by Mr. Vipan Sharma states that he was solely responsible for looking after the TDS matter of the company. He was not aware about the orders passed u/s 200(A) by CPC as he was not techno I.T.A Nos. 26 to 30/ASR/2021 6 friendly. In January, 2020 Mr. Vipan Sharma expressed his inability to carry on the work. In March, 2020, the assessee came to know about the alleged orders processed u/s 200(A) of the Act. Thus the delay caused in filing the appeal before the Ld. CIT(A) was solely due to negligence of Mr. Vipan Sharma. 10. It is noteworthy that Income Tax Department is continuously making changes has in the system of filing of TDS returns. It is well known that various assessee’s who are required to deduct and deposit the tax are indirectly providing free services to the Government by collecting the tax on behalf of a Government, depositng them on due dates and also filing the TDS returns incorporating all the details of the deductee including his name, address, PAN, amount of TDS, tax deducted etc. In the instant case also there is no dispute to the fact that the assessee has deducted and deposited TDS and has also filed his quarterly returns. The delay caused in filing the appeal before the Ld. CIT(A) is solely on account of the employee’s efficiency and ignorance of the regular changing of TDS system of filing the return and receiving of orders through emails and other modes. There seems to be no malafide intention of the assessee to make delay in filing the appeal. Hon’ble Supreme Court in the case of Vedabhai alias Vijaya Bali Babu Rao Patil v. Santaram Baburac Patil [2002] 253 ITR 798 has held that, “the Court has to exercise its direcretion on the facts of each case keeping in mind and construing the expression sufficient cause the principles of advancement and I.T.A Nos. 26 to 30/ASR/2021 7 substantial justice is of prime importance. The expression sufficient cause should receive a liberal consideration.” 11. Examining the facts of the instant issue is in appeal before us regarding delay in filing the appeal before the Ld. CIT(A), in the light of the above judgments of the Supreme Court, we find that the assessee had sufficient and reasonable cause which resulted in delay in filing the appeal and Ld. CIT(A) ought to have appreciated the reasons for such delay and should have thought in the larger interest of justice. We are therefore of the considered view that Ld. CIT(A) erred in not condoning the delay ignoring the fact that the assessee has a reasonable and sufficient cause and advancement of substantial justice was of prime importance in the given facts. We therefore allow ground no. 2 to 6 in favour of the assessee. 12. As regards ground no. 8 commonly raised in ITA Nos. 26 to 28 we find that the returns on Form 24Q for Quarter 2 of fianancial year 2012-13 and Form 24Q and 26Q for Quarter 4 (financial year 2012-13), the date of filing of return was 15.01.2013, 30.06.2014 and 30.06.2014 respectively and the due date of processing the return as provided under proviso to section 200(A), i.e., one year from the end of the financial year in which the statement is filed, was 31.03.2014, 31.03.2016, and 31.03.2016. However, the date of passing of the order u/s 200(A) for the alleged three Quarters is 29.08.2016, 05.12.2016 and 04.12.2016. Since there is no dispute to the facts mentioned hereinabove, it is crystal clear that all these three I.T.A Nos. 26 to 30/ASR/2021 8 orders passed on 29.08.2016, 05.12.2016 and 04.12.2016 are time barred by limitation. We therefore find merit in the submissions made by the Ld. Counsel for the assessee and hold that the levy of fee u/s 234E of the Act at Rs.18,400/- 42,000/- and 6820/- challenged before us in ITA Nos. 26 to 28/Asr/2021 deserves to be deleted as the order passed u/s 200(A) levying such fees are time barred by limitation and deserves to be quashed. Thus the assessee’s appeal in ITA Nos. 26 to 28/Asr/2021 are allowed. 13. As regards ITA Nos. 29 & 30/Asr/2021 is concerned, we find that the orders u/s 200A of the Act were processed on 27 th March, 2015. An amendment was brought in by the Finance Act effective from 1 st June, 2015 in section 200(A) of the Act thereby empowering the Assessing Officer to levy fee u/s 234E of the Act while processing the return u/s 200(A) of the Act. It has been consistently held by various Hon’ble Courts and Tribunals including this Tribunal in the case of M.G.N. Khalsa High School v. ACIT, CPC-TDS in ITA No. 16 17 and 18 of 2019 and also in the case of Advance Pharma Lab Ltd (ITA No. 2422/Ahd/2014, Dial India Corporation (ITA Nos. 3024 & 3025/Ahd/2014), Sudarshan Goyal (ITA No. 442/Agra)2017), Govt. Industrial Training Institute (ITA No. 128 to 134/Asr/2020) ,Punjab ICT Educational Society (ITA Nos. 657 to 660/Asr/2019), that it was only w.e.f. 1 st June, 2015 that the Assessing Officer was enabled with the power to determine fee u/s 234E and levy the same in the return process u/s 200(A) of the Act. Since no such levy could be made in an order passed u/s 200(A) of the Act I.T.A Nos. 26 to 30/ASR/2021 9 towards levy of fee u/s 234E of the Act prior to 1 st June, 2015, we respectfully following the above stated decision held that no such fee could be levied in the case of assessee at Rs. 14,610/- and 62,600/- for the returns filed for from 26Q 4 to 24Q, for quarter 4 of financial year 2013-14, as the orders processed u/s 200(A) of the Act were passed prior to 1 st June, 2015, i.e., 27.02.2015. Thus assessee succeeds in ITA Nos. 29 and 30 and the feee levied u/;s 234E stand deleted. 14. In the result, the appeals of the assessee through in ITA Nos. 26 to 30/Asr/2021 are allowed as per terms indicaed above. Order pronounced in the open court on 03/12/2021. Sd/- Sd/- (MAHAVIR PRASAD) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated 03/12/2021 *GP/Sr. P.S.* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT True Copy By Order