Yogender Nath Bhardwaj, New Delhi V. DCIT, Ghaziabad

ITA 2856/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3404 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2015-2016
• Appeal Filed On: 08-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 234E; 200A; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES G , NEW DELHI BEFORE SH. AMIT SHUKLA , JUDICIAL MEMBER DR. B. R. R. KUMAR , ACCOUNTANT MEMBER ITA NO. 2856 /DEL/201 7 : ASSTT. YEAR : 2015 - 1 6 YOGENDER NATH BHARDWAJ, 81 - 82, 1 ST FLOOR, GOKHALE MARKET, NEW DELHI - 110054 VS DCIT, CPC - TDS, GHAZIABAD (APPELLANT) (RESPONDENT) PAN NO. A AGPB0780J ASSESSEE BY : SH. MAYANK PATWARI , CA REVENUE BY : SH. N. K. BANSAL, SR. DR DATE OF HEAR ING: 27 . 08 .201 9 DATE OF PRONOUNCEMENT: 28 .08 .201 9 ORDER PER DR. B. R. R. KUMAR , A CCOUNTANT M EMBER : FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW COMMISSIONER OF INCOME TAX (APPEALS) - 41, NEW DELHI WAS NOT JUSTIFIED IN CONFIRMING THE LATE FILING FEE OF RS.20,000/ - IMPOSED BY THE DEPUTY COMMISSIONER OF INCOME TAX TDS. 2. THAT THE ASSESSING OFFICER HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO DEFEND HIS CASE AND WITHOUT GOING TO THE FACTS AND CIRCUMSTANCES OF THE CASE HE IMPOSED PENALTY OF RS.20,000/ - TO THE ASSESSEE FOR LATE FILING OF RETURN U/S 234E OF THE INCOME TAX ACT, 1961 WHICH IS UNJUSTIFIED AND UNLAWFUL. 2. THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 2 7 . 1 .201 7 PASSED BY LD. CIT(APPEALS) - 41 DELHI ITA NO . 2856 /DEL /2017 YOGENDER NATH BHARDWAJ 2 ON THE ISSUE OF SECTION 200A LEVY OF LATE FILING FEES /PENALTY U/S 234E FOR THE ASSESSMENT YEA R 2015 - 16 . 3 . THE FACTS IN BRIEF ARE THAT IN THE ORDER PASSED U/S 200A , LATE FILING FEE OF RS. 20,000 / - U/S 234E HAS BEEN LEVIED. IT WAS SUBMITTED THAT LEVY OF FEE U/S 234E CAN BE LEVIED ONLY WHEN THERE IS AN ENABLING PROVISION PRESCRIBED U/S 200A, WHICH HAS COME W.E.F. 1 ST JUNE , 2015. HOWEVER LD. CIT(A) AFTER REFERRING TO THE JUDGMENT OF HON BLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA AND DECIDED THE ISSUE AGAINST THE ASSESSEE. 4 . BEFORE US LD. DR HAS RELIED UPON THE JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF BISWAJIT DAS VS UNION OF INDIA 413 ITR 92 AND ALSO JUDGMENT OF HON BLE BOMBAY HIGH COURT IN THE CASE OF MR. RASHMIKANT KUNDALIA VS UNION OF INDIA AND WRIT PETITION NO. 771 OF 2014 AND SUBMITTED THAT THE L EVY OF FEE U/S 234E IS AUTOMATIC WHEREVER THERE IS A DELAY IN VIEW OF STATEMENT OF TAX AT SOURCE. 5 . AFTER CONSIDERING THE IMPUGNED ORDERS WE FIND DELAY IN FILING OF STATEMENT IN REGARD THIRD QUARTER FOR THE FINANCIAL YEAR 201 4 - 1 5 . THE DEMAND HAS BEEN RAISED BY THE DEPARTMENT U/S 200 IN TERMS OF FAILURE TO COMPLY WITH SECTION 200A WHICH DEALS WITH THE PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE U/S 200. FIRST OF ALL, SUB SECTION 3 OF SECTION 200 PROVIDES THAT THE PERSON DEDUCTING ANY SUM IN ACCORD ANCE WITH PROVISION OF CHAPTER XVII SHALL AFTER PAYING THE TAX DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME AND PREPARE SUCH STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED. PROVISION OF SECTION 200A PROVIDES THAT WHERE THE ST ATEMENT OF TAX DEDUCTION AT SOURCE HAS BEEN MADE BY THE PERSON ITA NO . 2856 /DEL /2017 YOGENDER NATH BHARDWAJ 3 DEDUCTING ANY SUM U/S 200, THEN SUCH STATEMENT SHALL BE PROCESSED IN THE MANNER GIVEN THEREIN. CLAUSE (C) OF SECTION 200A HAS BEEN SUBSTITUTED BY THE FINANCE ACT 2015 W.E.F. 1.6.2015 WHICH READ S AS UNDER: - '(C)THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E;' 6 . FEE FOR DEFAULT U/ S 234E PROVIDES THAT, WHEN A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED U/S 200(3), THEN THAT PERSON SHALL BE LIABLE TO PAY FEE IN THE MANNER PROVIDED THEREIN. THUS, FEE U/S 234E IS LEVIABLE IF THE STATEMENT IS NOT FILED AS PRESCRIBED U/S 200(3) WHICH IN TURN PROVIDES THAT THE STATEMENT TO BE FILED AFTER THE PAYMENT OF TAX TO THE PRESCRIB ED AUTHORITY. THE RELEVANT RULE 31A (4A) PROVIDES THAT FOR FILING OF THE 'CHALLAN CUM STATEMENT' WITHIN SEVEN DAYS FROM THE DATE OF DEDUCTION. NOW HERE IN THIS CASE THE DEMAND HAS BEEN RAISED PURELY ON THE GROUND THAT STATEMENT HAS NOT BEEN FURNISHED FOR T HE TAX DEDUCTION AT SOURCE. THE RELEVANT PROVISION OF SECTION 200(3) READ WITH RULE 31A (4A) ONLY REFERS TO FILING OF 'CHALLAN CUM STATEMENT' AFTER THE TAX HAS BEEN PAID. THE WORD 'CHALLAN' IN THE SAID RULE INDICATES THAT THE TAX MUST STAND PAID AND THAT I S HOW FORM 26QB IS GENERATED. THUS, HERE IN THIS CASE, IT CANNOT BE HELD THAT THERE IS ANY VIOLATION OF SECTION 200(3). IN ANY CASE, THE LEVY OF FEE VI] S 200A IN ACCORDANCE WITH THE PROVISION OF SECTION 234E HAS COME INTO THE STATUTE W.E.F. 1.6.2015. SINC E THE CHALLAN AND STATEMENT HAS BEEN FILED MUCH PRIOR TO THIS DATE, THEREFORE , NO SUCH TAX CAN BE LEVIED U/ S 200A. THIS HAS BEEN CLARIFIED AND HELD BY HON 'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS VS. UNION OF INDIA REPORTED IN (2016) 289 CTR 0602, WHEREIN THE COURT MADE FOLLOWING OBSERVATIONS : - ITA NO . 2856 /DEL /2017 YOGENDER NATH BHARDWAJ 4 1 4. WE MAY NOW DEAL WITH THE CONTENTIONS RAISED BY THE LEARNED COUNSEL FOR THE APPELLANTS. THE FIRST CONTENTION FOR ASSAILING THE LEGALITY AND VALIDITY OF THE INTIMATION UNDER SECTION 200A WAS THAT, THE PROVISION OF SECTION 200A(1)(C), (D) AND (F) HAVE COME INTO FORCE ONLY WITH EFFECT FROM 1.6.2015 AND HENCE, THERE WAS NO AUTHORITY OR COMPETENCE OR JURISDICTION ON THE PART OF THE CONCERNED OFFICER OR THE DEPARTMENT TO COMPUTE AND DETERMINE THE FEE UNDER SECTION 234E IN RESPECT OF THE ASSESSMENT YEAR OF THE EARLIER PERIOD AND THE RETURN FILED FOR THE SAID RESPECTIVE ASSESSMENT YEARS NAMELY ALL ASSESSMENT YEARS AND THE RETURNS PRIOR TO 1.6.2015. IT WAS SUBMITTED THAT, WHEN NO EXPRESS AUTHORITY WA S CONFERRED BY THE STATUTE UNDER SECTION 200A PRIOR TO 1.6.2015 FOR COMPUTATION OF ANY FEE UNDER SECTION 234E NOR THE DETERMINATION THEREOF, THE DEMAND OR THE INTIMATION FOR THE PREVIOUS PERIOD OR PREVIOUS YEAR PRIOR TO 1.6.2015 COULD NOT HAVE BEEN MADE.' 7 . THE JUDGMENT RELIED UPON BY THE LD. DR RELATE TO CONSTITUTIONAL VALIDITY AND VIRES OF THE PROVISION OF SECTION 234E. NOWHERE IN THE JUDGMENTS HON'BLE COURTS HAVE HELD THAT THE FEES U/S 200A READ WITH SECTION 234E SHALL BE LEVIED PRIOR TO 1.06.2 01 5, B ECAUSE PRIOR TO THIS DATE HAS NOT PRESCRIBED LEVY OF FEES U/S 200A. THUS, WE HOLD THAT NO FEE WAS LEVIABLE TO THE ASSESSEE U/ S 234E IN VIOLATION OF SECTION 200(3), BECAUSE ASSESSEE HAD FURNISHED THE STATEMENT IMMEDIATELY AFTER DEPOSITING ALL THE TAX WITHO UT ANY DELAY. ACCORDINGLY, THE DEMAND ON ACCOUNT OF 23 4E IS CANCELLED. ACCORDINGLY THE APPEAL OF THE ASSESSEE IS ALLOWED. 8 . IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 8TH AUGUST, 2019. SD/ - SD/ - ( AMIT SHUKLA ) ( DR. B. R. R. KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28 /0 8 /2019 *SUBODH*