Sh. Jitendra Kumar Mutha, PALI V. DCIT CPC-TDS), Ghaziabad, JODHPUR

ITA 353/JODH/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1958 (ITAT-JODHPUR)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-05-2017
• Assessment Year: misc
• Appeal Filed On: 25-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Reasonable cause; Right to appeal; Condonation of delay
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JODHPUR BENCH , JODHPUR BEFORE: SMT. DIVA SINGH, JM & SHRI BHAGCHAND, AM ITA NO. 353 & 354/JODH/2016 ASSESSMENT YEAR : 2013-14 (2 ND & 3 RD QUARTER/26Q) JITENDRA KUMAR MUTHA, 30, GUJARATI KATLA, PALI MARWAR. VS. D.C.I.T. (CPC-TDS), GAZIABAD. TAN NO.: JHDJ03211F APPELLANT RESPONDENT ASSESSEE BY : SHRI AMIT KOTHARI (CA) REVENUE BY : SHRI S.K. MEENA (JCIT) DR DATE OF HEARING : 01/05/2017 DATE OF PRONOUNCEMENT : 02/05/2017 ORDER PER: BHAGCHAND, A.M. THESE ARE THE APPEALS FILED BY THE SAME ASSESSEE E MANATES FROM THE TWO SEPARATE ORDERS DATED 29/07/2016 PASSED BY THE LD. CIT(A)-1, JODHPUR PERTAINING TO THE ASSESSMENT YEAR 2013-14 (2 ND AND 3 RD QUARTER 26/Q), WHEREIN THE ASSESSEE HAS TAKEN SIMILAR IDENTICAL GR OUNDS OF APPEAL. IN ITA NO. 353/JODH/2016 FOR THE A.Y. 2013-14 (2 ND QUARTER 26/Q), THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ORDER PASSED BY CPC-TDS, GHAZIABAD LEVYING THE LATE FILING FEE OF RS. 15,138/- U/S 234E FOR DELAY IN FURNISHING TH E STATEMENT OF 2 ND QUARTER/26Q FOR F.Y. 2013-13 PRESCRIBED U/S 200(3) . 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT CONSIDERING THE SUBMISSION OF THE ASSESSEE AND DECIDING THE CAS E ON THE BASIS OF THE VIEW TAKEN BY HON'BLE RAJASTHAN HIGH C OURT WHEREIN IT UPHELD THE CONSTITUTIONAL VALIDITY OF SE CTION 200A AND ITA 353 & 354/JODH/2016_ JITENDRA KUMAR MUTHA VS DCIT (CPC-TDS) 2 234E OF THE IT ACT WHEREAS THE CASE OF THE ASSESSEE IS THAT PRIOR TO AMENDMENT OF SECTION 200A W.E.F. 01/6/2015 WHICH AUTHORIZED THE COMPUTATION OF FEE U/S 234E ON PROCE SSING OF THE STATEMENT FURNISHED U/S 200, NO FEES CAN BE LEV IED U/S 234E OF THE ACT PRIOR TO 01/6/2015. SIMILAR IDENTICAL GROUNDS HAVE ALSO BEEN TAKEN BY T HE ASSESSEE IN ITA NO. 354/JODH/2016 FOR THE A.Y. 2013-14 (3 RD QUARTER 26/Q) 2. BOTH THE APPEALS ARE BEING HEARD TOGETHER AND FO R THE SAKE FOR CONVENIENCE AND BREVITY, A COMMON ORDER IS BEING PA SSED. 3. FIRSTLY WE TAKE ITA NO. 353/JODH/2016 . THE ASSESSEE IS AN INDIVIDUAL FILED HIS TDS STATEM ENT FOR 2 ND QUARTER AND 3 RD QUARTER OF F.Y. 2012-13 PERTAINING TO THE ASSESSME NT YEAR 2013-14 ON 21/06/2014, WHICH WERE NOT WITHIN STIPULATED TIM E AS PER THE TDS PROVISIONS. THEREFORE, THE ASSESSING OFFICER PASSED AN ORDER U/S 154 R.W.S. 200A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFER RED AS THE ACT) AND CREATED A DEMAND OF RS. 16,040/- FOR 2 ND QUARTER OF 26/Q AND RS.18,130/- FOR 3 RD QUARTER 26/Q ON ACCOUNT OF INTEREST ON LATE PAYMEN T AND LATE FILING FEE U/S 234E OF THE ACT FOR DEFAULT IN FURNISHING T HE STATEMENT WITHIN STIPULATED TIME. 4. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS, DISMISSED THE APPEAL OF THE ASSESSEE B Y HOLDING AS UNDER:- ITA 353 & 354/JODH/2016_ JITENDRA KUMAR MUTHA VS DCIT (CPC-TDS) 3 6. I HAVE CAREFULLY CONSIDERED THE ORDER U/S. 154 R.W. S. 200A, RELEVANT PROVISIONS/SECTIONS OF THE ACT AND SUBMISSIONS OF T HE APPELLANT. THE ISSUES REGARDING CONSTITUTIONAL VALIDITY OF SEC. 234E OF T HE ACT AND LEVYING OF LATE FILING FEE BEFORE 01-06-2015 WERE CONSIDERED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE D.B. CIVIL WRIT PETITION NO. 8672/2014 IN THE CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND ANR. V/S UNION OF INDIA AND O THERS. THE HON'BLE RAJASTHAN HIGH COURT UPHELD THE CONSTITUTIONAL VALI DITY OF SEC. 234E OF THE ACT FOLLOWING THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA & ORS. V/S. UNION OF INDIA AND ORS REPORTED IN 229 TAXMAN 596 (2015). FURTHER, THE HON'BLE JURISDICTIO NAL HIGH COURT STATED THAT THE CONSTITUTIONAL VALIDITY OF THE STATUTORY PROVIS ION IS NOT AMENABLE TO BE CHALLENGED ON THE GROUND THAT THE PERFORMANCE INSIS TED UPON BY THE STATUTORY PROVISION IS TOO ONEROUS OR THAT THE STATUTE DOES N OT LEAVE SUFFICIENT TIME OR DOES NOT ALLOW REASONABLE CAUSE TO BE CONSIDERED FO R VIOLATION OF THE PROVISION. THE CONCLUDING PARA 8 OF THE HON'BLE RAJASTHAN HIGH COURTS ORDER DATED 28- 07-2015 IS REPRODUCED AS UNDER:- 8. IN THE PRESENT CASE, THE FEE WAS LEVIED UNDER S ECTION 200 FOR LATE FILING OF THE RETURNS, PRIOR TO THE AMENDMENTS MADE BY THE FINANCE ACT, 2015 WITH EFFECT FROM 1.6.2015 IN SECTION 200A , 246A AND 272A PROVIDING FOR COMPUTATION AND APPEAL. WE DO NOT FIN D THAT EVEN PRIOR TO THESE AMENDMENTS THE IMPOSITION OF FEE WAS ILLEGAL. WE DO NOT IN EXERCISE OF THE POWER UNDER ARTICLE 226 OF T HE CONSTITUTION OF INDIA FIND ANY VALID REASONS OR JUSTIFICATION TO IN TERFERE WITH THE COMPENSATORY FEES IMPOSED FOR LATE FILING OF THE TD S RETURNS ON FLAT RATES. THE ABSENCE OF ANY PROVISION FOR- CONDONATIO N OF DELAY AND THE APPEAL PRIOR TO AMENDMENTS ALSO DID NOT MAKE TH E IMPOSITION OF LATE FEES BY SECTION 234E TO BE ULTRA VIRES. 9. THE WRIT PETITION HAS NO MERIT AND IS ACCORDING LY DISMISSED. THE ABOVE DECISION OF THE HON'BLE JURISDICTIONAL HI GH COURT BEING BINDING ON THE UNDERSIGNED AND THE APPELLANT HAVING NOT STATED ANY REASONABLE CAUSE FOR LATE FILING OF TDS RETURN FOR THE CONCERNED QUARTER , RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE COURT, THE LATE FILI NG FEE IMPOSED AT RS. 15,138/- IS SUSTAINED. THE GROUNDS RAISED BY THE APPELLANT R EGARDING THIS ISSUE ARE DISMISSED. ITA 353 & 354/JODH/2016_ JITENDRA KUMAR MUTHA VS DCIT (CPC-TDS) 4 5. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR OF THE ASSESSEE HAS REITERATED THE ARGUMENTS AS MADE BEFORE THE LD. CIT(A) AND PRAYED TO ALLOW THE APPEALS OF THE ASSESSEE. 6. ON THE CONTRARY, THE LD D.R. HAS VEHEMENTLY RELI ED ON THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND ALSO GONE THRO UGH THE ORDERS OF THE AUTHORITIES BELOW. THIS ISSUE IS DIRECTLY COVERED B Y THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKAN T KUNDALIA & ORS. VS UNION OF INDIA & ORS. (2015) 229 TAXMAN 596 (BOM) A ND THE LD. CIT(A) HAS RELIED ON THE DECISION OF THE HON'BLE BOMBAY HIGH C OURT. THE RELEVANT PORTION OF THE ORDER IS REPRODUCED HEREUNDER:- 18. WE ARE THEREFORE CLEARLY OF THE VIEW THAT THE FEE SOUGHT TO BE LEVIED UNDER SECTION 234E OF THE INCOME TAX ACT, 1961 IS NOT IN THE GUISE OF A TAX THAT IS SOUGHT TO BE LEVIED ON THE DEDUCTOR. WE ALSO DO NO T FIND THE PROVISIONS OF SECTION 234E AS BEING ONEROUS ON THE GROUND THAT TH E SECTION DOES NOT EMPOWER THE ASSESSING OFFICER TO CONDONE THE DELAY IN LATE FILING OF THE TDS RETURN/STATEMENTS, OR THAT NO APPEAL IS PROVIDED FO R FROM AN ARBITRARY ORDER PASSED UNDER SECTION 234E. IT MUST BE NOTED THAT A RIGHT OF APPEAL IS NOT A MATTER OF RIGHT BUT IS A CREATURE OF THE STATUTE, A ND IF THE LEGISLATURE DEEMS IT FIT NOT TO PROVIDE A REMEDY OF APPEAL, SO BE IT. EV EN IN SUCH A SCENARIO IT IS NOT AS IF THE AGGRIEVED PARTY IS LEFT REMEDILESS. SUCH AGGRIEVED PERSON CAN ALWAYS APPROACH THIS COURT IN ITS EXTRA ORDIN ARY EQUITABLE JURISDICTION UNDER ARTICLE 226 / 227 OF THE CONSTITUTION OF INDI A, AS THE CASE MAY BE. WE THEREFORE CANNOT AGREE WITH THE ARGUMENT OF THE PET ITIONERS THAT SIMPLY BECAUSE NO REMEDY OF APPEAL IS PROVIDED FOR, THE PR OVISIONS OF SECTION 234E ARE ONEROUS. SIMILARLY, ON THE SAME PARITY OF REAS ONING, WE FIND THE ITA 353 & 354/JODH/2016_ JITENDRA KUMAR MUTHA VS DCIT (CPC-TDS) 5 ARGUMENT REGARDING CONDONATION OF DELAY ALSO TO BE WHOLLY WITHOUT ANY MERIT. 19. IT IS NOW WELL SETTLED THAT EVEN THOUGH THIS C OURT EXERCISING JURISDICTION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA HAS THE PO WER TO DECLARE A STATUTE (OR ANY PROVISION THEREOF) AS UNCONSTITUTIONAL, IT SH OULD EXERCISE GREAT RESTRAINT BEFORE EXERCISING SUCH A POWER. REALLY SPEAKING, T HERE IS ONLY ONE GROUND FOR DECLARING AN ACT OF THE LEGISLATURE AS INVALID, AND THAT IS IF IT CLEARLY VIOLATES SOME PROVISION OF THE CONSTITUTION OF INDIA IN SO EVIDENT A MANNER SO AS TO LEAVE NO MANNER OF DOUBT. BEFORE DECLARING A STATU TE TO BE UNCONSTITUTIONAL, THE COURT MUST BE ABSOLUTELY SURE THAT THERE CAN BE NO MANNER OF DOUBT THAT IT VIOLATES THE PROVISIONS OF THE CONST ITUTION OF INDIA. IF TWO VIEWS ARE POSSIBLE, ONE MAKING THE STATUTE CONSTITUTIONAL AND THE OTHER MAKING IT UNCONSTITUTIONAL, THE FORMER VIEW MUST ALWAYS BE PR EFERRED. THE COURT MUST THEREFORE MAKE EVERY EFFORT TO UPHOLD THE CONSTITUT IONAL VALIDITY OF A STATUTE, EVEN IF IT REQUIRES GIVING THE STATUTORY PROVISION A STRAINED MEANING, OR A NARROWER OR WIDER MEANING, THAN WHAT APPEARS ON THE FACE OF IT. IT IS ONLY WHEN ALL EFFORTS TO DO SO FAIL SHOULD THE COURT DEC LARE A STATUTE TO BE UNCONSTITUTIONAL. 20. IT IS EQUALLY WELL SETTLED THAT A STATUTE RELA TING TO ECONOMIC ACTIVITIES SHOULD BE VIEWED WITH GREATER LATITUDE THAN LAWS TOUCHING CIVIL RIGHTS SUCH AS FREEDOM OF SPEECH, FREEDOM OF RELIGION ETC. AS R EGARDS ECONOMIC AND OTHER REGULATORY LEGISLATION IT IS IMPERATIVE THAT THE CO URT EXERCISES JUDICIAL RESTRAINT AND GRANTS GREATER LATITUDE TO THE LEGISL ATURE WHILST JUDGING THE CONSTITUTIONAL VALIDITY OF SUCH A STATUTE. THIS IS FOR THE SIMPLE REASON THAT THE COURT DOES NOT CONSISTS OF ECONOMIC AND ADMINISTRATIVE EXPERTS AND HAS NO EXPERTISE IN THESE MATTERS. THEREFORE EVEN LOOKING AT IT FROM THE PERSPECTIVE AS SET OUT IN THE AFORESAID JUDGMENT, WE ARE OF THE CLEAR VIEW THAT SECTION 234 E OF THE INCOME TAX ACT, 1961 DOES NOT VIOLATE ANY PROVISION OF THE CONSTITU TION AND IS THEREFORE INTRA VIRES, CONSTITUTION OF INDIA. IN VIEW OF THE AFORESAID DISCUSSION IN THIS JUDGME NT, WE FIND NO MERIT IN THIS WRIT PETITION AND THE SAME IS HEREBY DISMISSED. ITA 353 & 354/JODH/2016_ JITENDRA KUMAR MUTHA VS DCIT (CPC-TDS) 6 BY RESPECTFULLY FOLLOWING THE DECISION OF THE HON'B LE BOMBAY HIGH COURT, WE FIND NO ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A ) AND THEREFORE, THE SAME IS HEREBY CONFIRMED. ACCORDINGLY, THE ASSESSEES AP PEAL IS DISMISSED. 8. NOW WE TAKE ITA NO. 354/JODH/2016 . THE ISSUE RAISED IN THIS APPEAL IS IDENTICAL TO TH E FACTS OF ITA NO. 353/JODH/2016. SINCE THERE IS NO CHANGE IN THE FACT S AND CIRCUMSTANCES OF THE PRESENT APPEAL, THEREFORE, FOLLOWING THE DECISI ON ARRIVED AT IN ITA NO. 353/JAIPUR/2016, WE ALSO CONFIRM THE ORDER OF THE L D. CIT(A) AND DISMISS THIS APPEAL OF THE ASSESSEE. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/05/2017. SD/- SD/- (DIVA SINGH) (BHAGCHAND) JUDICIAL MEMBER ACCOUNTANT MEMBER JODHPUR DATED:- 02 ND MAY, 2017. *RANJAN COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI JITENDRA KUMAR MUTHA, PALI MARW AR. 2. THE RESPONDENT- THE A. D.C.I.T. (CPC-TDS), GAZIABAD . 3. CIT 4. THE CIT(A) 5. DR, ITAT, JODHPUR 6. GUARD FILE (ITA NO. 353 & 354/JODH/2016) BY ORDER, ASST. REGISTRAR