Commander Works Engineers Amritsar Cantt , Amritsar V. ITO (TDS), Amritsar

ITA 334/ASR/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2722 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-04-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 20-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DAVINDER PAL SINGH
• Assessee Lawyers: V. S
• Keywords: TDS; Set aside
• Section: 154; 250; 234E; 200A; 192; 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DAS GUPTA, JUDICIAL MEMBER I.T.A. Nos. 334 & 335/Asr/2023 Assessment Years: 2013-14 & 2014-15 Commander Works Engineers Amritsar Cantt, Amritsar. [TAN: AMRC11150G] (Appellant) Vs. ITO-TDS, Amritsar. (Respondent) Appellant by Sh. Rohit Kapoor, CA. & V. S. Aggarwal, ITP. Respondent by Sh. Davinder Pal Singh, Sr. DR Date of Hearing 18.04.2024 Date of Pronouncement 30.04.2024 ORDER Per: Udayan Das Gupta, JM: Both the appeals of the assessee are directed against the orders of the ld. CIT(A) NFAC, passed u/s 250 of the Income Tax Act 1961, both dated 21/09/2023, against upholding of levy of late fees u/s 234E of the Income Tax Act, 1961 relating to the period F.Y. 2012-13 (Assessment Year 2013-14) amounting to I.T.A. Nos. 334 & 335/Asr/2023 Assessment Years: 2013-14 & 2014-15 2 Rs.1,49,510/-, and for the period F.Y. 2013-14 (Assessment Year 2014-15) amounting to Rs.74,600/-. 2. Since, there is a common issue being involved in both the appeals, hence they are being disposed of by this consolidated order for the sake of convenience and brevity. ITA No.334/Asr/2023 (Assessment Year 2013-14) 3. The assessee has taken the following grounds which are reproduced as below: “I The Order passed by the Ld CIT(A) is opposed to law and contrary to the facts and circumstances of the case and is therefore unsustainable. That the CIT(A) has erred in confirming the confirming the levy of late Fees U/s 234-E at Rs. 3708/- and Rs 145800/- on TDS Statement filed under form 24Q for Quarter 3 (Oct 12-Dce 12) and Quarter 4(January 13- March I3) of A.Y. 2013-14 filed beyond due date. 2 That the CIT(A) erred in confirming the action of A.O. regarding rejection of application rectification under section 154 in a summary manner. That the CIT( A) has erred in appreciating the fact that prior to 1-6-2015, there was no enabling provision therein for raising a demand in respect of levy of fees under section 234E. That late fee levied upon assessee under section 234E for delayed filing of quarterly I.T.A. Nos. 334 & 335/Asr/2023 Assessment Years: 2013-14 & 2014-15 3 statements of TDS for period prior to I -6-2015, could not be legally sustained. 3 That the CIT(A) erred in confirming the action of the A.O. in respect of denying the application filed under section 154 for not levying the fees under section 234E for FY 2012-13. That the Cl 1(A) has erred in interpreting the fact that the amended provisions of section 200A are prospective and not retrospective. That the CIT(A) while confirming action of A.O. has failed to adhere to the fact that the machinery provision in section 200A(1) (c) for levying fees was inserted from 01.06.2015, consequently for TDS statements filed for the period prior to 01.06.2015, late fees charged under section 234E of the Act could not be levied in the intimation issued under section 200A of the Act. 4 That the CIT(A) has erred in confirming the late fees u/s 234E amounting to Rs. 1,49,510/- levied by the AO without adjudicating the case on merits. 5 That the appellant craves leave to add, amend or withdraw any of the grounds of appeal.” 4. Facts of the case are that the appellant is a Government Defence Department, which filed the quarterly TDS statement (Form 24Q) for Quarters 3 and 4 of the relevant year F.Y.2012-13 belatedly. Consequently, the Learned Assessing Officer (TDS CPC) imposed late fees calculated @Rs.200 per day under I.T.A. Nos. 334 & 335/Asr/2023 Assessment Years: 2013-14 & 2014-15 4 Section 234E, along with interest, totaling Rs. 1,49,510/-, primarily due to the delay in submitting the quarterly TDS statement. 4.1 The appellant filed an application for rectification under Section 154 through a letter dated August 17,2021. However, the Assessing Officer (TDS CPC) dismissed the application on the grounds that waiving late fees is beyond the authority's powers under the Income Tax Act, 1961. The rectification order was subsequently challenged before the Commissioner of Income Tax (Appeals), on the basis that the order passed by the Learned Assessing Officer (TDS CPC) is legally flawed given the provisions of Section 234E and Section 200A of the Income Tax Act, 1961. It was pointed that since clause (c) to sub-section (1) of Section 200A was only introduced effective from June 1, 2015, the absence of any provision allowing the levy of late fees under Section 234E at the time of processing returns invalidates the order passed by the Learned Assessing Officer. As such, the impugned order should be set aside. 5. We have heard both the parties in these cases. As per record the details of the TDS deduction and statement filed by the assessees are reproduced hereunder: Sr. No. ITA No. F.Y. /Quarter I.T.A. Nos. 334 & 335/Asr/2023 Assessment Years: 2013-14 & 2014-15 5 1. ITA 334/Asr/2023 2012-13/ (Form 24Q) Quarters 3 and 4 2. ITA 335/Asr/2023 2013-14/(Form 24Q and 26Q) Quarters 1, 2, 3 and 4 5.1 The common issue involved in these appeals are that the AO imposed late fees u/s 234E of the Act., where the enabling clause (c) was inserted in the section 200A w.e.f. 01.06.2015, and the said imposition of late fees has been confirmed by the Ld. CIT(A), in first appellate proceedings. 5.2 We understand that earlier, there was no enabling provision in the Act u/s 200A for raising demand in respect of levy of fee u/s 234E. As such, in respect of TDS statement filed for a period prior to 31.03.2015, no late fee could be levied in the intimation issued u/s 200A of the Act. 5.3 On similar facts, the same issue has been adjudicated by the Co-ordinated bench ITAT Agra, in the case of ‘Sudershan Goyal vs. DCIT (TDS)’ in ITA No. 442/Agra/2017 vide order dtd. 09.04.2018 and also by the Amritsar Bench in case of Harbhagwan Memorial Senior Secondary School and others in ITA No. 604/ASR/2018, Assessment Year 2015-16 vide order dated 07/07/2021. The relevant part of the order is reproduced as under: I.T.A. Nos. 334 & 335/Asr/2023 Assessment Years: 2013-14 & 2014-15 6 “3. Heard. The ld. CIT(A), while deciding the matter against the assessee, has placed reliance on ‘Rajesh Kaurani vs. UOI’, 83 Taxmann.com 137 (Guj), wherein, it has been held that section 200A of the Act is a machinery provision providing the mechanism for processing a statement of deduction of tax at source and for making adjustments. The ld. CIT(A) has held that this decision was delivered after considering numerous ITAT/High Court decisions and so, this decision in ‘Rajesh Kaurani’ (supra) holds the field. 4. We do not find the view taken by the ld. CIT(A) to be correct in law. As against ‘Rajesh Kaurani’ (supra), ‘Shri Fatehraj Singhvi and Others vs. UOI’, 73 Taxmann.com 252 (Ker), as also admitted by the ld. CIT(A) himself, decides the issue in favour of the assessee. The only objection of the ld. CIT(A) is that this decision and others to the same effect have been taken into consideration by the Hon’ble Gujarat High Court while passing ‘Rajesh Kaurani’ (supra). However, while observing so, the ld. CIT(A) has failed to take into consideration the settled law that where there is a cleavage of opinion between different High Courts on an issue, the one in favour of the assessee needs to be followed. It has so been held by the Hon’ble Supreme Court in ‘CIT vs. Vegetable Products Ltd.’, 88 ITR 192 (SC). It is also not a case where the decision against the assessee has been rendered by the Jurisdictional High Court qua the assessee. I.T.A. Nos. 334 & 335/Asr/2023 Assessment Years: 2013-14 & 2014-15 7 5. In ‘Shri ‘FatehrajSinghvi and Others’ (supra) it has been held, inter alia, as follows: “22. It is hardly required to be stated that, as per the well established principles of interpretation of statute, unless 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 Section 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 will not permit the deductor to reopen the said question unless he has made payment under protest.” 6. In view of the above, respectfully following ‘Shri FatehrajSinghvi and Others’ (supra), ‘Sibia Healthcare Pvt. Ltd. vs. DCIT (TDS)’, order dated 09.06.2015 passed in ITA No.90/ASR/2015, for A.Y.2013-14, by the Amritsar Bench of the Tribunal, and ‘Shri Kaur Chand Jain vs. DCIT, CPC (TDS) Ghaziabad’, order dated 15.09.2016, in ITA No.378/ASR/2015, for A.Y. 2012-13, the grievance of the assessee is accepted as I.T.A. Nos. 334 & 335/Asr/2023 Assessment Years: 2013-14 & 2014-15 8 justified. The order under appeal is reversed. The levy of the fee is cancelled.” 6. Similar view has also been taken by the Kolkata, ITAT in the case of Sri Bhaskar Roy, ITA Nos: ITA No 421 and 422 / Kolkata 12021 for Asst year 2015- 16 and also by the ITAT, Jodhpur Bench, in the case of Dinesh Infrastructure Private Limited, in ITA No: 75 and 76/Jodhpur/2022 for the Asst years 2013-14 and 2014-15, and also in the case of United Service Station, Jalandhar, ITA No: 22/ASR/2022 for Asst year 2013-14. Respectfully, following our own findings of the coordinate bench on the issue, we accept the legal position that late fees u/s 234E of the Act 61, cannot be imposed on late filing of TDS returns u/s 200A, for both the Asst years, under appeal, and the same is deleted. The appeal filed by the assessee is allowed. ITA No: 335/ASR/2023: Asst Year : 2014-15: 7. The facts of the case and the grounds of appeal contained in Memorandum of appeal in Asst year 2014-15, are almost identical to the Asst Year 2013-14, save and except the disputed late fees amount is Rs. 68,320/- for the Asst year 2014-15, and as such for the sake of brevity the same is not repeated.: I.T.A. Nos. 334 & 335/Asr/2023 Assessment Years: 2013-14 & 2014-15 9 Since, the appeal for the assessee in ITA No: 334/ASR/2023 for the Asst year 2013-14, has been decided in favour of the assessee, therefore the decision taken therein shall apply mutatis mutandis in this appeal of the assessee also on similar facts and circumstances, and the imposition of late fees is deleted. Hence, both the appeals of the assessee are allowed. 8. In the result, both the appeals of the assessee bearing ITA Nos. 334/Asr/2023 & 335/Asr/2023 are allowed. Order pronounced in the open court on 30.04.2024 Sd/- Sd/- (Dr. M. L. Meena) (Udayan Das Gupta) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order