Vipul Forms & Graphics Pvt.Ltd., Ahmedabad V. Dy.Commissioner of Income Tax,CPC,TDS, Gaziabad

ITA 3091/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7982 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 03-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 246

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD .., , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.3091/AHD/2015 ( / ASSESSMENT YEAR : 2014-15) VIPUL FORMS & GRAPHICS PVT.LTD. 26, RAJSUKH COMPLEX LOTUS FLATS LANE OPP. GUJARAT VIDYAPITH AHMEDABAD-380 009 / VS. THE DCIT CPC, TDS GHAZIABAD $ ./ ./ PAN/GIR NO. : AHMV 02632 A ( $' / APPELLANT ) .. ( ($' / RESPONDENT ) $') / APPELLANT BY : SHRI P.M. MEHTA WITH SHRI G.M. THAKOR, ARS ($'*) / RESPONDENT BY : SHRI PRASOON KABRA, SR.DR +,*- / DATE OF HEARING 12/12/2017 ./0*- / DATE OF PRONOUNCEMENT 13/ 12 /2017 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-8, AHMEDABAD [CIT(A) IN SHORT] DATED 02/09/2015 ARISING IN THE INTIMATION PASSED UNDER S.200A OF THE INCOME TAX AC T, 1961 (HEREINAFTER ITA NO.3091/AHD /2015 VIPUL FORMS & GRAPHICS PVT.LTD. VS. DCIT, CPC, TD S ASST.YEAR 2014-15 - 2 - REFERRED TO AS 'THE ACT') DATED 02/09/2015 FOR QUA RTER-4 OF THE FINANCIAL YEAR (FY) 2013-14 RELEVANT TO ASSESSMENT YEAR (AY) 2014-15. 2. THE ONLY GROUND RAISED IN THE PRESENT APPEAL RE LATES TO FEE CHARGED UNDER S.234-E FOR BELATED FILING OF TDS RETURN. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE REVENUE HAS IMPOSED LAT E FILING FEES UNDER S.234E OF THE ACT AMOUNTING TO RS.17,000/- FOR BELA TED FILING OF QUARTER - 4 RETURN IN PRESCRIBED FORM NO.26Q FOR THE FY 2013- 14 RELEVANT TO AY 2014-15. 4. THE LD.AR ON FACTS SUBMITTED THAT THE INTIMATION UNDER S.200A TO THE ASSESSEE NOTIFYING LATE FILING FEE UNDER S.234- E DATED 03/09/2014 SUGGESTS THAT THE ISSUE RELATES TO THE PERIOD PRIOR TO 01/06/2015. THE LD.AR ACCORDINGLY SUBMITTED THAT THE DEFAULT IN FUR NISHING TDS STATEMENT PRIOR TO 01/06/2015 DO NOT GIVE RISE TO L ATE FILING FEE UNDER S.234-E IN VIEW OF THE LIMITED MANDATE OF SECTION 2 00A AT THE RELEVANT TIME. THE LD.AR SUBMITTED THAT THE ISSUE IS NO LON GER RES INTEGRA AND DECIDED IN FAVOUR OF ASSESSEE BY PLETHORA OF TRIBUN AL DECISIONS IN RESPECT OF CASES PRIOR TO 01/06/2015. THE LD.AR RELIED UP ON THE DECISION OF THE TRIBUNAL IN THE CASE OF WONDER WAVES ENTERTAINMENT PVT.LTD. VS. DCIT, ITA NO.3091/AHD /2015 VIPUL FORMS & GRAPHICS PVT.LTD. VS. DCIT, CPC, TD S ASST.YEAR 2014-15 - 3 - CPC, TDS-GHAZIABAD IN ITA NOS.2143 TO 2146/AHD/2015 FOR AY 2014- 15, ORDER DATED 14/10/2015. 5. THE LD.DR RELIED UPON THE ORDER OF THE CIT(A). 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. WE FIND THAT THE CORRECTNESS OF CHARGE OF LATE FEE UNDER S.234E HAS DULY BEEN EXAMINED IN VARIOUS JUDICIAL PRECEDENTS. IT WILL B E APT TO REPRODUCE THE OPERATIVE PARA OF THE ORDER OF THE TRIBUNAL IN THE CASE OF WONDER WAVES ENTERTAINMENT PVT.LTD.(SUPRA) WHICH IS SQUARELY APP LICABLE TO THE FACTS OF THE CASE. 6. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS A ND GONE THROUGH THE RECORD CAREFULLY. WE DEEM IT PERTINENT TO TAKE NOTE OF THE LUCID ENUNCIATION OF LAW AND FACTS MADE BY THE ITAT, AMRITSAR WHILE DELE TING THE CHARGING OF LATE FEE U/S. 234E OF THE ACT. THE FINDINGS READS AS UND ER:- 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED T HE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. IN ADDITION TO HIS ARGUMENT ON THE MERITS , LEARNED COUNSEL HAS ALSO INVITED OUR ATTENTION TO THE REPORTS ABOUT THE DECI SIONS OF VARIOUS HONBLE HIGH COURTS, INCLUDING HONBLE KERALA HIGH COURT, I N THE CASE OF NARATH MAPILA LP SCHOOL VS UNION OF INDIA [WP (C) 31498/20 13(J)], HONBLE KARANATAKA HIGH COURT IN THE CASE OF ADITHYA BIZOR P SOLUTIONS VS UNION OF INDIA [WP NO. 6918-6938/2014(T-IT), HONBLE RAJASTH AN HIGH COURT IN THE CASE OF OM PRAKASH DHOOT VS UNION OF INDIA [WP NO. 1981 OF 2014] AND OF HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS UNION OF INDIA [WP NO. 771 OF 2014], GRANTING STAY ON THE DE MANDS RAISED IN RESPECT OF FEES UNDER SECTION 234E. THE FULL TEXT OF THESE DECISIONS WERE NOT PRODUCED BEFORE US. HOWEVER, AS ADMITTEDLY THERE ARE NO ORDE RS FROM THE HONBLE COURTS ABOVE RETRAINING US FROM OUR ADJUDICATION ON MERITS IN RESPECT OF THE ITA NO.3091/AHD /2015 VIPUL FORMS & GRAPHICS PVT.LTD. VS. DCIT, CPC, TD S ASST.YEAR 2014-15 - 4 - ISSUES IN THIS APPEAL, AND AS, IN OUR HUMBLE UNDERS TANDING, THIS APPEAL REQUIRES ADJUDICATION ON A VERY SHORT LEGAL ISSUE, WITHIN A NARROW COMPASS OF MATERIAL FACTS, WE ARE PROCEEDING TO DISPOSE OF THI S APPEAL ON MERITS. 5. WE MAY PRODUCE, FOR READY REFERENCE, SECTION 23 4E OF THE ACT, WHICH WAS INSERTED BY THE FINANCE ACT 2012 AND WAS BROUGH T INTO EFFECT FROM 1ST JULY 2012. THIS STATUTORY PROVISION IS AS FOLLOWS: 234E. FEE FOR DEFAULTS IN FURNISHING STATEMENTS (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WIT HIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUBSECTION (3) OF SECTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVERY DAY DURING WH ICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CASE MAY BE. (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STAT EMENT IN ACCORDANCE WITH SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS T HE CASE MAY BE, ON OR AFTER THE 1ST DAY OF JULY, 2012. 6. WE MAY ALSO REPRODUCE THE SECTION 200A WHICH WA S INSERTED BY THE FINANCE ACT 2009 WITH EFFECT FROM 1ST APRIL 2010. T HIS STATUTORY PROVISION, AS IT STOOD AT THE RELEVANT POINT OF TIME, WAS AS FOLL OWS: 200A: PROCESSING OF STATEMENTS OF TAX DEDUCTED AT S OURCE (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE, O R A CORRECTION STATEMENT, HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAF TER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEM ENT SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY: ITA NO.3091/AHD /2015 VIPUL FORMS & GRAPHICS PVT.LTD. VS. DCIT, CPC, TD S ASST.YEAR 2014-15 - 5 - (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMAT ION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMPUTED UNDE R CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR: PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YE AR IN WHICH THE STATEMENT IS FILED. EXPLANATION : FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHA LL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE STATEMENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOUR CE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE T AX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE S AID SUBSECTION. ITA NO.3091/AHD /2015 VIPUL FORMS & GRAPHICS PVT.LTD. VS. DCIT, CPC, TD S ASST.YEAR 2014-15 - 6 - 7. BY WAY OF FINANCE ACT 2015, AND WITH EFFECT FROM 1ST JUNE 2015, THERE IS AN AMENDMENT IN SECTION 200A AND THIS AMENDMENT, AS ST ATED IN THE FINANCE ACT 2015, IS AS FOLLOWS: IN SECTION 200A OF THE INCOME-TAX ACT, IN SUB-SECTI ON (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WIT H EFFECT FROM THE 1 ST DAY OF JUNE, 2015, NAMELY: (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 234E; (D) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF THE AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST ANY AMOUNT PAID UNDER SECTION 20 0 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY O F TAX OR INTEREST OR FEE; (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR. 8. IN EFFECT THUS, POST 1ST JUNE 2015, IN THE COUR SE OF PROCESSING OF A TDS STATEMENT AND ISSUANCE OF INTIMATION UNDER SECTION 200A IN RESPECT THEREOF, AN ADJUSTMENT COULD ALSO BE MADE IN RESPECT OF THE FE E, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTI ON 234E. THERE IS NO DISPUTE THAT WHAT IS IMPUGNED IN APPEAL BEFORE US I S THE INTIMATION UNDER SECTION 200A OF THE ACT, AS STATED IN SO MANY WORDS IN THE IMPUGNED INTIMATION ITSELF, AND, AS THE LAW STOOD, PRIOR TO 1ST JUNE 2015, THERE WAS NO ENABLING PROVISION THEREIN FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEES UNDER SECTION 234E. WHILE EXAMINING THE CORRECTNESS OF THE INTIMATION UNDER SECTION 200A, WE HAVE TO BE GUIDED BY THE LIMITED M ANDATE OF SECTION 200A, WHICH, AT THE RELEVANT POINT OF TIME, PERMITTED COM PUTATION OF AMOUNT RECOVERABLE FROM, OR PAYABLE TO, THE TAX DEDUCTOR A FTER MAKING THE FOLLOWING ADJUSTMENTS: (A). AFTER MAKING ADJUSTMENT ON ACCOUNT OF ARITHME TICAL ERRORS AND INCORRECT CLAIMS APPARENT FROM ANY INFORMATION IN THE STATEMENT - SECTION 200A(1)(A) ITA NO.3091/AHD /2015 VIPUL FORMS & GRAPHICS PVT.LTD. VS. DCIT, CPC, TD S ASST.YEAR 2014-15 - 7 - (B) AFTER MAKING ADJUSTMENT FOR INTEREST, IF ANY, COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT. - SECTION 200A(1)(B) 9. NO OTHER ADJUSTMENTS IN THE AMOUNT REFUNDABLE T O, OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBLE IN ACCORDA NCE WITH THE LAW AS IT EXISTED AT THAT POINT OF TIME. 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSI DERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED U NDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER SECTION 246 A(A), AND, THEREFORE, THE CIT(A) OUGHT TO HAVE EXAMINED LEGALITY OF THE ADJUS TMENT MADE UNDER THIS INTIMATION IN THE LIGHT OF THE SCOPE OF THE SECTION 200A. LEARNED CIT(A) HAS NOT DONE SO. HE HAS JUSTIFIED THE LEVY OF FEES ON T HE BASIS OF THE PROVISIONS OF SECTION 234E. THAT IS NOT THE ISSUE HERE. THE ISSUE IS WHETHER SUCH A LEVY COULD BE EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A. THE ANSWER IS CLEARLY IN NEGATIVE. NO OTHER PROVISION ENABLING A DEMAND IN RESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN A DMITTED POSITION THAT IN THE ABSENCE OF THE ENABLING PROVISION UNDER SECTION 200 A, NO SUCH LEVY COULD BE EFFECTED. AS INTIMATION UNDER SECTION 200A, RAISING A DEMAND OR DIRECTING A REFUND TO THE TAX DEDUCTOR, CAN ONLY BE PASSED WITH IN ONE YEAR FROM THE END OF THE FINANCIAL YEAR WITHIN WHICH THE RELATED TDS STA TEMENT IS FILED, AND AS THE RELATED TDS STATEMENT WAS FILED ON 19TH FEBRUARY 20 14, SUCH A LEVY COULD ONLY HAVE BEEN MADE AT BEST WITHIN 31ST MARCH 2015. THAT TIME HAS ALREADY ELAPSED AND THE DEFECT IS THUS NOT CURABLE EVEN AT THIS STAGE. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF TH E CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234 E IS UNSUSTAINABLE IN LAW. W E, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED L EVY OF FEE UNDER SECTION 234E OF THE ACT. THE ASSESSEE GETS THE RELIEF ACCOR DINGLY. 7. THERE IS NO DISPARITY ON FACTS, RESPECTFULLY FOL LOWING THE ORDER OF ITAT, AMRITSAR. WE ALLOW THESE ALL APPEALS AND DELETE THE LATE FEE CHARGED FROM THE ASSESSEE U/S. 234E OF THE ACT. ITA NO.3091/AHD /2015 VIPUL FORMS & GRAPHICS PVT.LTD. VS. DCIT, CPC, TD S ASST.YEAR 2014-15 - 8 - 7. IN VIEW OF THE PARITY OF THE FACTS, WE RESPECTFU LLY FOLLOW THE DECISION OF THE COORDINATE BENCH AND DIRECT THE ASS ESSING OFFICER (AO) TO DELETE THE LATE FILING FEES IMPOSED UNDER S.234- E OF THE ACT. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON 13 / 12 /2017 SD/- SD/- (..) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 13/ 12 /2017 4..+,.+../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 567- 8- / CONCERNED CIT 4. 8- ( ) / THE CIT(A)8 5. 9:-+67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <, / GUARD FILE. / BY ORDER, (9-- //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD ITA NO.3091/AHD /2015 VIPUL FORMS & GRAPHICS PVT.LTD. VS. DCIT, CPC, TD S ASST.YEAR 2014-15 - 9 - 1. DATE OF DICTATION .. 12.12.2017 (DICTATION-PAD 6- PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.12.2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.13.12.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13.12.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER