KAMALA ENTERPRISES, MUMBAI V. ITO (TDS) 1(1)(2), MUMBAI

ITA 3324/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7847 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 21-03-2017
• Assessment Year: misc
• Appeal Filed On: 02-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHAN
• Keywords: Right to appeal; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH H MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM , , I.T.A. NO. 332 4 /MU M/20 1 5 ( / ASSESSMENT YEAR : 20 1 3 - 14 (26Q - Q4 ) KAMALA ENTERPRISES GROUND FLOOR, COSMOS, PLOT NO.399, NEAR GOLDEN TOBACCO, S V ROAD, VILE PARLE (W), MUMBAI - 400056. / VS. INCOME TAX OFFICER (TDS) 1(1) - (2) TDS, K G MITTAL BLDG, CHARNI ROAD, MUMBAI - 400002 ./ PAN : AAHFK8972G ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI M C OMI NINGSHAN / DATE OF HEARING : 21. 3 .2017 / DATE OF PRONOUNCEMENT : 31. 3. 201 7 / O R D E R PER RAJESH KUMAR, A. M: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A) - 5 9 , MUMBAI DATED 21 .4. 2015 FOR THE ASSESSMENT YEAR 20 1 4 - 15 (26Q - 2 ) 2. AT THE OUTSET, WE WOULD LIKE TO MENTION HERE THAT NEITHER THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THIS TRIBUNAL WHEN THE APPEAL WAS CALLED FOR HEARING NOR THERE IS ANY APPLICATION SEEKING 2 I.T.A. NO. 33 2 4 /MUM/201 5 ADJOURNMENT OF THE HEARING IS RECEIVED IN THE OFFICE OF THE TRIBUNAL, THEREFORE, WE PROCEED TO DISPOSE OF THE APPEAL OF THE ASSESSEE EX - PARTE ON MERIT AFTER HEARING THE LD.DR. 3 . THE ISSUE RAISED IN THE VARIOUS GROUNDS OF APPEAL IS AGAINST THE CONFIRMATION OF LATE FILING FEE OF RS.8,200/ - AS LEVIED BY THE A O UNDER SECTION 234E OF THE INCOME TAX ACT, 1961 FOR LATE FILING OF TDS RETURN BY 41 DAYS. 4 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS RECEIVED AN INTIMATION FROM THE REVENUE AUTHORITIES U/S 200A OF THE ACT STATING THAT THE ASSESSEE HAS COMMI TTED DEFAULT IN MAKING PAYMENT OF TDS AND CHARGED INTEREST ON LATE PAYMENT OF RS.16,161.00 BESIDES LEVYING PENALTY OF RS.8,200/ - FOR LATE FILING OF RETURN OF TDS @ RS. 200/ - FOR 41 DAYS OF DELAY . THE ASSESSEE FILED FORM NO.26 Q FOR 2 ND QUARTER FOURTH Q UARTER ON 25.11.2013 WHICH WAS DUE TO FILE ON 15. 10 .2013 IN RESPECT OF TAX DEDUCTED THEREBY DELAY ING THE FILING OF RETURN BY 41 DAYS FOR WHICH LATE PAYMENT FEES OF RS.8,200/ -- WAS IMPOSED UNDER SECTION 234E OF THE ACT DATED 23.2.2015 RECEIVED FROM TDS, CPC, AAYAKAR BHAVAN, SECTOR - 3, VAISHALI, GAZIABAD, UP - 201010. THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD.CIT(A) ALSO STOOD DISMISSED BY FOLLOWING THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF RASHMIKANT KUNDALIA V/S UNION OF I NDIA DATED, 9 TH FEB, 2015 IN WHICH THE HONBLE BOMBAY HIGH COURT HAS HELD THAT THE FEE SO UGHT TO BE LEVIED UNDER SECTION 234E IS NOT IN THE GUISE OF THE TAX THAT IS SOUGHT TO BE LEVIED ON THE 3 I.T.A. NO. 33 2 4 /MUM/201 5 DEDUCTOR. THE COURT FURTHER HELD THAT THE PROVISIONS OF S ECTION 234E ARE NOT ONEROUS ON THE GROUND THAT THE SECTION DOES NOT EMPOWER THE AO TO CONDONE THE DELAY IN LATE FILING OF THE TDS RETURN/STATEMENTS, OR THAT NO APPEAL IS PROVIDED FOR FROM AN ARBITRARY ORDER PASSED UNDER SECTION 234E. THE HONBLE COURT OBS ERVED THAT THE RIGHT OF APPEAL IS NOT A MATTER OF RIGHT BUT A CREATURE OF STATUTE AND IF THE LEGISLATURE DEEMS IT FIT NOT TO PROVIDE A REMEDY OF APPEAL, SO BE IT AND EVEN IN SUCH SCENARIO IT IS NOT AS IF THE AGGRIEVED PARTY IS REMEDILESS. SUCH PERSON C AN ALWAYS APPROACH THIS COURT IN EXTRA ORDINARY EQUITABLE JURISDICTION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA AS THE CASE MAY BE. THE HONBLE COURT HAS HELD THAT WE CANNOT AGREE WITH THE ARGUMENTS OF THE PETITIONER THAT SIMPLY BECAUSE NO REM EDY OF APPEAL IS PROVIDED FOR , THE PROVISION S OF SECTION 234E OF THE ACT ARE ONEROUS. SIMILARLY, ON THE SAME PARITY OF REASONING, WE FIND THE ARGUMENTS REGARDING THE CONDONATION OF DELAY ALSO TO BE WHOLLY WITHOUT ANY MERITS. 4 . WE HAVE HEARD THE RIVAL C ONTENTIONS, PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE CASE LAW RELIED UPON BY BOTH THE PARTIES. THE LD. AR VEHEMENTLY ARGUED BEFORE US THAT THE LATE FILING FEE U/S 234E OF THE ACT IS NOT LEVIABLE UNDER THE PROVISIONS OF THE ACT AND WAS WRONGLY L EVIED BY THE AO AND UPHELD BY THE FAA. THE LD. AR DREW OUR ATTENTION TO THE PROVISIONS OF SECTIONS 234E, 200A (A,B,C,D,E AND F) AND ALSO THE PROVISIONS OF SECTION 200 SUBSECTION (3) OF THE ACT. THE LD. AR ARGUED BEFORE US THAT THE PROVISIONS 4 I.T.A. NO. 33 2 4 /MUM/201 5 OF SECTI ON 200(3) OF THE ACT REQUIRE THE ASSESSEE TO FILE A STA TE MEN T WITHIN A PRESCRIBED PERIOD FOR EACH QUARTER WHICH WAS INSERTED FROM 1.4.2005 AND THE PROVISIONS OF SECTION 272A(2)(K) PROVID ING FOR LEVY OF PENALTY OF RS.100 PER DAY FOR EACH DAY OF DEFAULT IN FILING TDS ALSO CAME TO BE INSERTED FROM 1.4.2005. THE LD. AR SUBMITTED THAT ON 1.4.2010 SECTION 200A WAS INSERTED PROVIDING FOR THE PROCESSING OF THE TDS STATEMENT AND THE CONSEQUENT ISSUANCE OF THE INTIMATION TO THE DEDUCTOR, DETERMIN ING THE AMO UNT PAYABLE OR REFUNDABLE BY IT. BUT IN THE INITIAL PROVISIONS OF SECTION 200A, THERE WAS NO REFERENCE FOR FEE PAYABLE UNDER SECTION 234E. ON 1.7.2012, SECTION 234E PROVIDED FOR LE VY ING OF FEE O F RS.200/ - PER DAY FOR EACH DAY OF DEFAULT IN FILING TH E TDS. WE FIND MERIT IN THE ARGUMENT OF THE LD.AR THAT THE PROVISIONS OF SECTION 20 0A (1)(C) OF THE ACT THERE WAS NO AUTHORITY OR COMPETENCE OR JURISDICTION ON THE PART OF THE CONCERNED OFFICER OR DEPARTMENT TO COMPUTE OR DETERMINE THE FEE UNDER SECTION 234E IN RESPECT OF ASSESSMENT WHICH FALLS PRIOR TO 1.6.2 01 5 AS THE SAID PROVISIONS WAS ALSO BROUGHT ON THE STATUTE BOOK W.E.F. 1.6.2015 AND CONSEQUENTLY NO DEMAND U/S 234E SHOULD HAVE BEEN DETERMINED AND RAISED UPON THE ASSESSEE. IN THE CASE OF FATHERAJ SINGHVI V/S UNION OF INDIA 2016] 73 TAXMANN.COM 252 (KARNATAKA), THE HONBLE KARNATAKA HIGH COURT HAS DECIDED AN IDENTICAL ISSUE WHEREIN IT HAS BEEN HELD THAT NO FEE UNDER 5 I.T.A. NO. 33 2 4 /MUM/201 5 SECTION 234E WAS PAYABLE IN RESPECT OF PERIOD WHICH RELATES TO OR FALLS PRIOR TO 1.6.2015. THE RELEVANT EXTRACT IS REPRODUCED BELOW : 27. IN VIEW OF THE AFORESAID OBSERVATIONS AND DISCUSSION, THE IMPUGNED NOTICES UNDER SECTION 200A OF THE ACT FOR COMPUTATION AND INTIMATION FOR PAYMENT OF FEE UNDER SECTION 234E AS THEY RELATE TO FOR THE PERIOD OF THE TAX DEDUCTED PRIOR TO 1.6.2015 ARE SET ASIDE. IT IS CLARIFIED THAT THE PRESENT JUDGMENT WOULD NOT BE INTERPRETED TO MEAN THAT EVEN IF THE PAYMENT OF THE FEES UNDER SECTION 234E ALREADY MADE AS PER DEMAND/INTIMATION UNDER SECTION 200A OF T HE ACT FOR THE TDS FOR THE PERIOD PRIOR TO 01.04.2015 IS PERMITTED TO BE REOPENED FOR CLAIMING REFUND. THE JUDGMENT WILL HAVE PROSPECTIVE EFFECT ACCORDINGLY. IT IS FURTHER OBSERVED THAT THE QUESTION OF CONSTITUTIONAL VALIDITY OF SECTION 234E SHALL REMAIN O PEN TO BE CONSIDERED BY THE DIVISION BENCH AND SHALL NOT GET CONCLUDED BY THE ORDER OF THE LEARNED SINGLE JUDGE. 28. THE APPEALS ARE PARTLY ALLOWED TO THE AFORESAID EXTENT . WE FIND THAT THE RELEVANT PERIOD IS 31 ST MAY, 2015 THE LAST DATE FOR FILING TDS STATEMENT AND HENCE PERIOD FALLS PRIOR TO 1.6.2015. WE, THEREFORE, RESPECTFULLY FOLLOWING THE SAME RATIO AS LAID DOWN BY THE HONBLE KARNATAKA HIGH COURT IN THE ABOVE MENTIONED CASE AND OUR AFORESAID OBSERVATIONS AND DISCUSSION AND THE PROVISIONS OF LAW , WE ARE INCLINED TO SET ASIDE THE ORDER OF THE LD.CIT(A) ON THIS ISSUE AND DIRECT THE AO TO DELETE THE LATE FILING FEE U/S 234E OF THE ACT OF RS. 8,2 00/ - . WE WOULD LIKE TO MENTION THAT THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WAS RENDERED ON DIFFERENT CONTEXT THAT THE ISSUE OF LEVY OF LATE FILING UNDER SECTION 234E OF THE ACT WAS NOT APPEALABLE AND THEREFORE NOT ONEROUS. SINCE THE AO HAS NO POWER TO IMPOSE 6 I.T.A. NO. 33 2 4 /MUM/201 5 LATE FILING FEE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE AO TO DELET E THE FEE OF RS. 8,2 00/ - . 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31ST MARCH, 2017. S D SD ( /MAHAVIR SINGH ) ( / RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 31. 3 .2017 SR.PS:SRL: / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMB AI