Community Health Centre, Dhenkanal V. DCIT-CPC-TDS,

ITA 31/CTK/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4354 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 24-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: K K BAL
• Keywords: Retrospective amendment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ITA NO. 31 /CTK/201 7 ( / ASSESSMENT YEAR : 201 4 - 201 5 ) COMMUNITY HEALTH CENTRE, MATHAKARAGO LA, KAMAKSHYA NAGAR, DHENKANAL, VS. DCIT - CPC - TDS, VAISHALI, GHAJIYABAD(UP) ./ ./ PAN/TAN NO. : BBNC 0099 1 E ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI K.K.BAL ,AR /REVENUE BY : SHRI D.K.PRADHAN , DR / DATE OF HEARING : 12 / 0 2 /201 8 / DATE OF PRONOUNCEMENT 14 / 0 2 /201 8 / O R D E R PER SHRI N.S.SAINI , A M : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT( A) - 3 , BHUBANESWAR , DATED 24.10.2016 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT(A) ERRED IN CONFIRMING THE ORDER OF AO LEVYING LATE FEE U/S.234E OF THE ACT FOR DELAY IN FILING QUARTERLY STATEMENT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSE SSEE FILED TDS RETURN IN FORM NO. 24Q FOR 4 TH QUARTER OF FINANCIAL YEAR 2013 - 2014 RELATING TO ASSESSMENT YEAR 2014 - 2015 ON 12 TH MARCH, 2015. THE SAME WAS REQUIRED TO BE FILED BY THE ASSESSEE ON 31 ST MAY, 2014. THEREFORE, THE AO LEVIED LATE FEE U/S.234E OF T HE ACT FOR 301 DAYS @RS.200/ - PER DAY AND DETERMINED THE LATE FEE PAYABLE BY THE ASSESSEE AT RS.60,200/ - . 4. BEING AGGRIEVED BY THIS ORDER, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) CONFIRMED THE ACTION OF AO. ITA NO. 31 / /1 7 2 5. BEFORE US, THE AR OF THE ASSE SSEE HAS RELIED ON THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF GLEE PHARMA PVT. LTD., ITA NOS.161 TO 163/CTK/2016, ORDER DATED 28.08.2017 AND ARGUED THAT THE TRIBUNAL HAS DELETED THE LATE FEE BY OBSERVING THAT THE PROVISION OF SECTION 234E OF THE ACT IS APPLICABLE W.E.F.01.06.2015 AND THAT THE SAME IS NOT APPLICABLE FOR THE PERIOD PRIOR TO THE SAID DATE. HENCE, HE PRAYED THAT THE LATE FEE OF RS.60,200/ - SHOULD BE DELETED. 6. THE DR VERY FAIRLY CONCEDED THAT THE ISSUE IS COVERED IN FAVOUR OF T HE ASSESSEE AND AGAINST THE DEPARTMENT BY THE ORDER OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF GLEE PHARMA PVT. LTD(SUPRA) AS ARGUED BY THE AR OF THE ASSESSEE. 7. WE FIND THAT THE TRIBUNAL IN THE CASE OF GLEE PHARMA PVT. LTD., ITA NOS.161 TO 163/CTK/201 6, ORDER DATED 28.08.2017 , HAS HELD AS UNDER : - 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. WE FIND THAT ON SIMILAR ISSUE, THIS BENCH OF THE TRIBUNAL HAS DELETED THE LEVY OF FEE U/S.23 4 E OF THE ACT IN THE ABOVE STATED CASE, OBSERVING AS UNDER: WE HAVE HEARD BOTH PARTIES AND PERUSED THE RECORDS. WE FIND THAT THE ONLY ISSUE PERMEATING FROM ALL THE 5 APPEALS IS REGARDING IMPOSITION OF LEVY OF FEE FOR LATE FILING TDS RETURN U/S 234E OF T HE ACT, WHILE PROCESSING THE STATEMENTS FURNISHED BY THE ASSESSEE U/S 200A OF THE ACT. AT THE OUTSET ITSELF, IT WAS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THAT THIS ISSUE IS NO LONGER RES INTEGRA SINCE THE HON'BLE KARNATAKA HIGH COURT IN FATEHRAJ SINGHVI V. UNION OF INDIA (289 CTR 0602) HAS HELD THAT W.E.F. 01.06.2015, THE PARLIAMENT BY WAY OF AN AMENDMENT TO SECTION 200A OF THE ACT, HAS EMPOWERED THE AO TO LEVY FEE U/S 234E OF THE ACT WHILE PROCESSING U/S 200A OF THE ACT. THEREFORE, PRIOR TO ITA NO. 31 / /1 7 3 THAT DATE I.E. 01.06 .2015, THE AO HAD NO AUTHORITY TO LEVY FEE U/S 234E OF THE ACT. THEREFORE, ACCORDING TO THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE, THAT THE AO ERRED IN LEVYING THE FEE U/S 234E OF THE ACT WHICH BEEN WRONGLY CONFIRMED BY THE LD. CIT( A) AND, THEREFORE, THE IMPUGNED ORDERS OF THE LD. CIT(A) NEED TO DELETED. 6. ON THE OTHER HAND, THE LD. CIT(DR) CONTENDED THAT THE PUNJAB AND HARYANA HIGH COURT IN DR. AMRIT LAI MANGAL VS. UNION OF INDIA 62 TAXMANN.COM 310 (PUNJAB & HARYANA) HAS TAKEN A VIEW WHICH IS IN FAVOUR OF THE REVENUE. ON A QUERY FROM THE BENCH AS TO WHETHER THE JURISDICTIONAL HIGH COURT I.E. HON'BLE ORISSA HIGH COURT HAS PASSED ANY ORDERS IN RESPECT TO THE LIS BEFORE US. THE LD. DR FAIRLY CONCEDED THAT THERE IS NO ORDER OF THE HON 'BLE ORISSA HIGH COURT ON THE ISSUE IN HAND BEFORE US. IT IS WELL SETTLED THAT WHEN THERE IS NO ORDER OF THE JURISDICTIONAL HIGH COURT ON THE ISSUE BEFORE US, THE TRIBUNAL WILL FOLLOW THE ORDER OF THE HIGH COURT WHICH IS IN FAVOUR OF THE ASSESSEE (CIT VS. VEGETABLE PRODUCTS LTD. 88 ITR 192 (SC)). IN SUCH A SCENARIO, WE ARE INCLINED TO FOLLOW THE ORDER OF THE KARNATAKA HIGH COURT WHICH HAS BEEN BROUGHT TO OUR KNOWLEDGE BY THE LD. COUNSEL FOR THE ASSESSEE. 7. THE FACTS IN FATEHRAJ SINGH VS..UNION OF INDIA ( SUPRA), WHICH WAS DECIDED BY THE HON'BLE KARNATAKA HIGH COURT WAS THAT FOR FINANCIAL YEAR 2012 - 13 AND 2013 - 14, TDS WAS DEDUCTED BY THE RESPECTIVE ASSESSEES AND DEPOSITED IN THE GOVERNMENT ACCOUNT. HOWEVER, AS PER THE DEPARTMENT, THERE WAS DELAY IN FILING T HE RETURN/STATEMENT WITH THE DETAILS OF THE PERSONS FROM WHOM THE TDS WAS DEDUCTED INCLUDING THE DETAILS AND THE PERSONS CONCERNED AND THE TRANSACTIONS ETC. THE DEPARTMENT ISSUED INTIMATION U/S 200A OF THE ACT, CALLING UPON THE RESPECTIVE ASSESSEES TO PAY LATE FILING FEE U/S 234E OF THE ACT IN PURPORTED EXERCISE OF THE POWER U/S 200A OF THE ACT. THE ASSESSEE CHALLENGED THE LEVY OF THE FEE AND ALSO THE VIRES OF THE STATUTE ITA NO. 31 / /1 7 4 (SECTION 234E). THE HON'BLE HIGH COURT DID NOT MAKE ANY FINDING IN RESPECT OF THE VIRE S OF THE STATUTE AND THE SAID ISSUE WAS LEFT OPEN. HOWEVER, THE HON'BLE HIGH COURT HELD THAT PRIOR TO 01.06.2015, THE AO WHILE ISSUING INTIMATION U/S 200A DOES NOT HAVE THE AUTHORITY UNDER LAW, TO MAKE ANY ORDER U/S 243E OF THE ACT AND WAS PLEASED TO DELET E THE ORDER OF LEVY OF LATE FEE U/S 234E OF THE ACT. THE HON'BLE HIGH COURT HELD AS FOLLOWS IN PARA 22 TO 24 WHICH IS REPRODUCED AS UNDER: 22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PER THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE, U NLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY PROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE FIND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB - SECTION (1) OF S ECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WIL L NOT PERMIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST. 23. IN VIEW OF THE AFORESAID OBSERVATION AND DISCUSSION, SINCE THE IMPUGNED INTIMATION GIVEN BY THE RESPONDENT - DEPARTMENT AGAINST ALL THE APPELLANTS UNDER SECTI ON 200A ARE SO FAR AS THEY ARE FOR THE PERIOD PRIOR TO 1.6.2015 CAN BE SAID AS WITHOUT ANY AUTHORITY UNDER LAW. HENCE, THE SAME CAN BE SAID AS ILLEGAL AND INVALID. 24. IF THE FACTS OF THE PRESENT CASES ARE EXAMINED IN LIGHT OF THE AFORESAID OBSERVATION AN D DISCUSSION, IT APPEARS THAT IN ALL MATTERS, THE INTIMATION GIVEN IN PURPORTED EXERCISE OF POWER ITA NO. 31 / /1 7 5 UNDER SECTION 200A ARE IN RESPECT OF FEES UNDER SECTION 234E FOR THE PERIOD PRIOR TO 1.6.2015. AS SUCH, IT IS ON ACCOUNT OF THE INTIMATION GIVEN MAKING DEMAND OF THE FEES IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A, THE SAME HAS NECESSITATED THE APPELLANT - ORIGINAL PETITIONER TO CHALLENGE THE VALIDITY OF SECTION 234E OF THE ACT. IN VIEW OF THE REASONS RECORDED BY US HEREINABOVE, WHEN THE AMENDMENT MADE UND ER SECTION 200A OF THE ACT WHICH HAS COME INTO EFFECT ON 1.6.2015 IS HELD TO BE HAVING PROSPECTIVE EFFECT, NO COMPUTATION OF FEE FOR THE DEMAND OR THE INTIMATION FOR THE FEE UNDER SECTION 234E COULD BE MADE FOR THE TDS DEDUCTED FOR THE RESPECTIVE ASSESSMEN T YEAR PRIOR TO 1.6.2015. HENCE, THE DEMAND NOTICES UNDER SECTION 200A BY THE RESPONDENT - AUTHORITY FOR INTIMATION FOR PAYMENT OF FEE UNDER SECTION 234E CAN BE SAID AS WITHOUT ANY AUTHORITY OF LAW AND THE SAME ARE QUASHED AND SET ASIDE TO THAT EXTENT. 8. WE TAKE NOTE THAT THE FACTS OF THE AFORESAID CASE AND THE FACTS BEFORE US ARE SIMILAR. ONLY AFTER 01.06.2015, THE AO CAN LEVY FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT AND NOT BEFORE. THEREFORE, RESPECT FULLY RELYING THE ORDER OF THE HON'BLE KARNATAKA HIGH COURT, THE IMPUGNED INTIMATION OF THE LOWER AUTHORITIES LEVYING FEE UNDER SECTION 234E OF THE ACT CANNOT BE SUSTAINED IN LAW. ACCORDINGLY THE INTIMATION UNDER SECTION 200A AS CONFIRMED BY THE LD. CIT(A) IN SO FAR AS LEVY OF FEE UNDER SECTION 234E IS SET ASIDE AND FEE LEVIED U/S 243E IN ALL THE APPEALS ARE ORDERED TO BE DELETED. HOWEVER, THE OTHER ADJUSTMENTS MADE BY THE AO IN THE IMPUGNED INTIMATION SHALL STAND AS SUCH. 6. IN THE APPEALS BEFORE US, T HE FINANCIAL YEAR INVOLVED IS 2013 - 14. THEREFORE, RESPECTFULLY FOLLOWING THE PRECEDENT, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND DELETE THE LEVY OF FEE U/S.234 E OF THE ACT IN ALL THE QUARTERS AND ALLOW THE APPEALS FILED BY THE ASSESSEE. ITA NO. 31 / /1 7 6 8. THE APP EAL BEFORE US RELATES TO THE FINANCIAL YEAR 2013 - 14 RELEVANT TO ASSESSMENT YEAR 2014 - 2015 . THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL QUOTED ABOVE, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND DELETE THE LEVY OF FEE OF RS.60,200/ - M ADE U/S.234 E OF THE ACT IN THE 4 TH Q UARTER AND ALLOW THE APPEAL FILED BY THE ASSESSEE. 9 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 / 02 /201 8 . SD/ - ( PAVAN KUMAR GADALE ) S D/ - (N. S. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 14 /0 2 /2018 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - COMMUNIT Y HEALTH CENTRE, MATHAKARAGOLA, KAMAKSHYA NAGAR, DHENKANAL, 2. / THE RESPONDENT - DCIT - CPC - TDS, VAISHALI, GHAJIYABAD(UP) 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT , CUTTACK 6. / GUARD FILE. //TRUE COPY//