Gulab Sidhwani, Hyderabad V. Asst. Commissioner of Income Tax, TDS Range-1 , Hyderabad

ITA 302/Hyd/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9031 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-10-2018
• Assessment Year: 2015-2016
• Appeal Filed On: 12-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Keywords: TDS; Set aside
• Section: 234E; 200A; 201; 153; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE S MT . P. MADHAVI DEVI , JUDICIAL MEMBER AND SHRI S . RIFAUR RAHMAN , ACCOUNTANT MEMBER ITA NO S . 302 & 303 /HYD/201 8 ASSESSMENT YEAR: 20 1 5 - 16 GULAB SIDHWANI & MONICA SIDHWANI, HYDERABAD . PAN ANIPS 3620 B & DDPPS 4840M VS. ASST. COMMISSIONER OF INCOME - TAX, TDS, RANGE 1, HYDERABAD. ( APPELLANT S ) (RESPONDENT) ASSESSEE BY : SHRI T. CHAITANYA KUMAR REVENUE BY : S HRI NILANJAN DEY DATE OF HEARING : 12 / 1 0/2018 DATE OF PRONOUNCEMENT : 17 / 1 0 / 201 8 O R D E R PER S . RIFAUR RAHMAN , A .M. : BOTH THESE APPEALS PREFERRED BY TWO DIFFERENT ASSESSEES' ARE DIRECTED AGAINST THE ORDERS OF CIT(A) - 8, HYDERABAD, BOTH, DATED 07/112017 FOR THE AY 2015 - 16. AS IDENTICAL ISSUE IS INVOLVED IN BOTH T H E APPEALS, THEY WERE CLUBBED AND HEARD TOGETHER AND THEREF ORE, A COMMON ORDER IS PASSED FOR THE SAKE OF CONVENIENCE. 2. BRIEF FACTS, AS TAKEN FROM THE CASE OF GULAB SIDHWANI, ARE THAT THE ASSESSEE HAD FILED HIS 260B FORM FOR FY 2014 - 15 ON 09TH APRIL, 2015 WHICH WAS DUE TO BE FILED ON 31ST OCTOBER, 2014, RESULTE D INTO DELAY OF 160 DAYS. THE AO OBSERVED THAT AS PER THE PROVISIONS OF SECTION 234E OF THE ACT, IF A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE PRESCRIBED TIME PERIOD THEN HE SHALL BE LIABLE TO PAY LATE FEES @ RS. 200/ - PER DA Y BEFORE FILING THE TDS 2 ITA NO S . 302 & 303 /HYD/1 8 GULAB SIDHWANI & MONICA SIDHWANI, HYD. STATEMENT. ACCORDINGLY, HE IMPOSED A LATE FEES U / S 234E FOR 153 DAYS OF RS. 30,600 / - FOR DELAY IN FILING OF 26QB FORM. 3. WHEN THE ASSESSEE PREFERRED AN AP PEAL BEFORE THE CIT(A), THE CIT(A) FOLLOWING THE JUD GM ENT OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS. UNION OF INDIA [2017] 83 TAXMANN.COM 13, DISMISSED THE APPEAL OF THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSE E IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL, WHICH ARE COMMON IN BOTH THE APPEALS, EXCEPT THE QUANTUM ADDITION: '1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) IS ERRONEOUS, ILLEGAL AND UNSUSTAINABLE IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN CONFIRMING THE ORDER WITHOUT GIVING ANY FURTHER OPPORTUNITY. 3. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN CONFIRMING THE LATE FE E IMPOSED U/S 234E OF THE I. T . ACT. 4. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, IT IS PRAYED THAT THE APPEAL MAY BE ALLOWED. 5. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT SIMILAR ISS UE CAME UP FOR CONSIDERATION BEFORE THE COORDINATE BENCH OF THIS TRIBUNAL (WHERE BOTH THE MEMBERS ARE PARTY) IN THE CASE OF MIS TERRA INFRA DEVELOPMENT LTD., IN ITA NOS. 1876 & 1875/HYD/2017 VIDE ORDER DATED 03/10/2018. IN THE SAID CASE, THE COORDINATE BEN CH HAS OBSERVED AS UNDER: '4. WE FIND THAT THOUGH THE PROVISIONS FOR LEVY OF FEE IN CERTAIN CASES HAS BEEN BROUGHT INTO THE STATUTE BOOK W. E.F. 1.7.2012, IT HAS BEEN BROUGHT UNDER THE PURVIEW OF SECTION 200A ONLY W. E.F. 1.6.2015. THEREFORE, AS RIGHTLY HELD BY THE COORDINATE BENCH IN THE CASE OF M/ S. SONALAC PAINTINGS & COATINGS LTD (167 D TR 3 ITA NO S . 302 & 303 /HYD/1 8 GULAB SIDHWANI & MONICA SIDHWANI, HYD. (CHD. TRIB) 183) WE HOLD THAT THE INTEREST U/S 234E CANNOT BE LEVIED IN RESPECT OF TOS RETURNS FILED PRIOR TO 1.6.2015. FOR THE SAKE OF READY REFERENCE, THE RELEVANT PARA IS REPRODUCED , HEREUNDER: '10. NOW COMING TO THE MERITS OF THE CASE, W E FIND FORCE IN THE ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT PRIOR TO 01.06.2015, THERE WAS NO MANDATE, AS PER THE STATUTE, TO MAKE ANY ADJUSTMENT ON ACCOUNT OF LEVY OF FEES ULS 234E WHILE PROCESSING TOS RETURNS ULS 200A. WE HAVE TAKEN NOTE OF THE ORDER OF THE HON'BLE GUJARAT HIGH COURT HOLDING THE AMENDMENT MADE TO SECTION 200A W. E.F. 01.06.2015, GIVING POWER TO MAKE ADJUSTMENT ON ACCOUNT OF FEES U / S 234E WHILE PROCESSING RETURNS U / S 200A TO BE RETROSPECTIVE IN NATURE, STATING THAT THIS POW ER GIVEN TO THE AO IS A MACHINERY PROVISION WHILE THE SUBSTANTIVE PROVISION OF THE POWER TO LEVY FEES ULS 234E WAS ALWAYS THERE ON THE STATUTE FROM 01.06.2012. BUT AT THE SAME TIME, WE NOTE THAT THE HON'BLE KARNATAKA HIGH COURT HELD THAT LEVY OF FEES ULS 2 34E WHILE PROCESSING RETURNS, T D S U/S 200A PRIOR TO 01.06.2015 WAS WITHOUT ANY AUTHORITY OF LAW. WITH TWO DIVERGENT VIEW OF THE HON'BLE HIGH COURTS ON THE ISSUE AND IN THE ABSENCE OF ANY DECISION BY THE JURISDICTIONAL HIGH COURT, WE CONCUR WITH THE LEARNED COUNSEL FOR THE ASSESSEE THAT AS PER THE WELL ACCEPTED RULE OF CONSTRUCTION, IF TWO REASONABLE CONSTRUCTIONS OF A STATUTE ARE POSSIBLE THE CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. IN VIEW OF THE SAME, RESPECTFULLY FOLLOWING THE DECISION OF THE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI (289 CTR 602), WE HOLD THAT THE FEES LEVIED IN ALL THE PRESENT CASES U / S 234E PRIOR TO 01.06.2015 IN THE INTIMATIONS MADE ULS 200A WAS WITHOUT AUTHORITY OF LAW AND THE SAME IS THEREFORE, DIRECTED TO BE DELETED. IN VIEW OF THE ABOVE, ALL THE APPEALS OF THE ASSESSEE STAND ALLOWED'. 5.1 AS THE ISSUE UNDER CONSIDERATION IS MATERIALLY IDENTICAL TO THAT OF THE ABOVE DECISION, RESPECTFULLY FOLLOWING THE SAME, WE SET ASIDE THE ORDER OF CIT(A) AND DIRECT TH E AO TO DELETE LEVY OF LATE FEE IMPOSED U/S 234E. ACCORDINGLY, GROUNDS RAISED ARE ALLOWED. 6. AS THE FACTS AND GROUNDS IN THE CASE OF MONICA SIDHWANI ARE MATERIALLY IDENTICAL TO THAT OF GULAB SIDHWANI, FOLLOWING THE DECISIO N THEREIN, WE ALLOW THE G ROUNDS RAISED BY THE ASSESSEE. 4 ITA NO S . 302 & 303 /HYD/1 8 GULAB SIDHWANI & MONICA SIDHWANI, HYD. 7. IN THE RESULT, BOTH THE APPEALS UNDER CONSIDERATION ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 17 TH OCTOBE R , 2018 . SD/ - SD/ - ( P. MADHAVI DEVI ) (S . RIFAUR RAHMAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 17 TH OCTOBER , 2018 KV C OPY TO: - 1) GULAB SIDHWANI & 2) MONICA SIDHWANI, C/O T. CHAITANYA KUMA R, ADVOCATE, FLAT NO. 102, GOURI APARTMENT, URDULANE, HIMAYA T NAGAR , HYDERABAD. 2 ) ADDL. C IT , TDS RA NGE 1, HYDERABAD . 3) CIT (A) 8 , HYDERABAD. 4) CIT (TDS) , HYD. 5 ) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 6 ) GUARD FILE