Bibhutananda Panda, Bhubaneswar V. DCIT, Central Processing Cell-TDS, Gaziabad

ITA 359/CTK/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0801 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 25-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J K LENKA
• Keywords: Condonation of delay; TDS; Set aside
• Section: 234E; 200A; 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM . / ITA NO. 359 /CTK/201 7 ( / ASSESSMENT YEAR : 20 1 3 - 201 4 ) BIBHUTA NANDA PANDA , 1764, NAYAPALLI, BHUBANESWAR KHURDA - 751012 VS. DCI T, CENTRAL PROCESSING CELL - TDS, VAISHALI, GAJIYABAD(UP) PAN NO. : AE K PP 8638 K TAN NO. : BBNB 02283 B ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : NONE /REVENUE BY : SHRI J.K.LENKA , JCIT - DR / DATE OF HEARING : 1 0 / 0 6 /20 20 / DATE OF PRONOUNCEMENT : 11 / 06 /20 20 / O R D E R PER L.P.SAHU , A M : TH IS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 25.08.2015 PASSED BY THE CIT(A) - 3, BHUBANESWAR, THEREBY CONFIRMING THE LEVY OF FEE U/S.234E OF THE ACT BY THE AO. 2. AS PER THE OFFICE NO TE, THERE IS A DELAY OF 672 DAY S IN FILING THE PRESENT APPEAL. IN THIS REGARD, LD. AR HAS FILED AN APPLICATION DATED 15.09.2017 EXPLAINING THE REASONS FOR CONDONATION OF DELAY . L D. DR ALSO DID NOT OBJECT TO CONDONE THE DELAY. WE HAVE GONE THROUGH THE APPLICATION FILED BY THE ASSESSEE AND FOUND THAT THERE IS SUFFICIENT REASONS STATED BY THE ASSESSEE FOR CONDONATION OF DELAY IN FILING THE ITA NO. 3 59 /CTK/201 7 2 PRESENT APPEAL. ACCORDINGLY, WE CONDONE THE DELAY OF 672 D A YS IN FILING THE APPEAL AND THE APPEAL IS HEARD FINALLY. 3 . NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THE CASE WAS CALLED FOR SECOND ROUND OF HEARING, THEREFORE, THE BENCH PROCEEDED TO DECIDE THE APPEAL OF THE ASSESSEE AFTER CONSIDERING THE SUBMI SSIONS OF LD. DR AND THE MATERIAL FACTS AVAILABLE ON THE RECORD. 4 . AFTER CONSIDERING THE SUBMISSIONS OF LD. DR AND PERUSING THE ENTIRE MATERIAL AVAILABLE ON RECORD , WE FIND THAT THE ASSESSEE FILED TDS RETURN FOR 2 ND QUARTER OF 26Q FOR F.Y. 2013 - 2014 ON 26.10.2013. DURING PROCESSING THE STATEMENT, THE A O NOTICED SHORT DEDUCTION/COLLECTION OF RS.14,000/ - AND, THEREFORE, THE AO RAISED THE DEMAND OF RS.14000/ - AND INTEREST ON LATE PAYMENT AND INTEREST ON SHORT DEDUCTION/COLLECTION OF RS.3,030/ - AND RS.2,160/ - RESPECTIVE VIDE ORDER DATED 26.10.2013 . THE AO ALSO LEVIED LATE FILING FEE OF RS.14,000/ - U/S.234E OF THE ACT FOR DELAY IN FILING THE ST ATEMENT. IT IS CLEAR THAT THE ASSESSEE HAD DEDUCTED TDS ON THE DUE AMOUNTS AND IT HAS BEEN DEPOSITED TO THE INCOME TAX DEPARTMENT AND THERE IS MERELY A FAILURE FOR LATE FILING OF QUARTERLY TDS RETURN FOR THE QUARTER - 2 ( 26Q) . TO SUPPORT OUR ABOVE VIEW, RELIANCE CAN BE PLACED ON THE DECISION OF JODHPUR BENCH OF THE TRIBUNAL IN THE CASE OF STATION HEAD QUARTERS (ARMY) VS. ACIT, [2019] 108 TAXMANN.COM 294(JODHPUR - TRIB.), ITA NO. 3 59 /CTK/201 7 3 WHEREIN THE COORDINATE BENCH OF THE TRIBUNAL AT PARA 6 HAS OBSERVED AS UNDER : - 6. IN THE LIGHT OF THE AFORESAID DECISION AND RESPECTFULLY FOLLOWING THE SAME, WE NOTE THAT IT APPEARS THA T IN ALL MATTERS, THE INTIMATION GIVEN BY THE AO WHICH ARE GIVEN IN PURPORTED EXERCISE OF POWER U/S. 200A ARE IN RESPECT OF LATE FEES U/S. 234E OF THE ACT FOR THE PERIOD PRIOR TO 01.06.2015. AS SUCH, IT IS ON ACCOUNT OF THE INTIMATION GIVEN MAKING DEMAND O F THE LATE FEE IN PURPORTED EXERCISE OF POWERS U/S. 200A OF THE ACT. WE NOTE THAT CLAUSE (C) OF SEC. 200A OF THE ACT EMPOWERS THE AO TO LEVY LATE FEE WAS W.E.F. 01.06.2015 AND THERE IS NO INDICATION [WHICH IS EITHER EXPRESS OR IMPLIED] WHILE AMENDMENT WAS MADE THAT IT IS RETROSPECTIVE OR CLARIFACTORY IN NATURE. SINCE THE AO IS EMPOWERED TO LEVY THE LATE FEE FOR LATE FILING OF THE STATEMENT OF TDS/TCS STATEMENT AND IN THE MEMORANDOM EXPLAINING THE INTRODUCTION OF FINANCE BILL, 2015 CLEARLY TOOK NOTE OF THE P ROVISIONS OF CHAPTER XVIIB UNDER WHICH THE PERSONS DEDUCTING TAX I.E. DEDUCTOR WAS REQUIRED TO FILE QUARTERLY TAX DEDUCTION AT SOURCE, STATEMENTS CONTAINING THE DETAILS OF DEDUCTION OF TAX MADE DURING QUARTERLY BY THE PRESCRIBED DUE DATES. (SIMILAR RESPONS IBILITY IS ON THE PERSONS REQUIRED TO COLLECT TAX OF CERTAIN SPECIFIED RECEIPT U/S. 206C OF THE ACT). IN ORDER TO PROVIDE EFFECTIVE DETERRENCE AGAINST THE DELAY IN FURNISHING TDS/TCS STATEMENTS, THE FINANCE ACT, 2012 INSERTED SEC. 234E OF THE ACT TO PROVID E FOR LEVY OF FEES ON LATE FURNISHING OF TDS STATEMENTS. THE MEMORANDUM OF FINANCE BILL, 2015, FURTHER TOOK NOTE OF THE FACT THAT THE FINANCE (NO. 2) ACT 2009, INSERTED SEC. 200A IN THE ACT, WHICH PRESCRIBED FOR FURNISHING OF TDS STATEMENTS FOR DETERMINING THE AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR. IT FURTHER TOOK NOTE THAT HOWEVER, AS SEC. 234E OF THE ACT WAS INSERTED AFTER THE INSERTION OF SEC. 200A IN THE ACT, THE EXISTING PROVISIONS OF SEC. 200A OF THE ACT DO NOT PROVIDE FOR DETERMINATION OF LATE FEES PAYABLE U/S. 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENT. IT WAS THUS, PROPOSED TO AMEND THE PROVISIONS OF SEC. 200A OF THE ACT SO AS TO ENABLE THE COMPUTATION OF TAXES PAYABLE U/S. 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STAT EMENT U/S. 200A OF THE ACT. TAKING NOTE OF THE AFORESAID LEGAL HISTORY THE MEMORANDUM EXPLAINING FINANCE BILL, 2015 TOOK NOTE OF THE FACT THAT AT THAT TIME THERE DOES NOT EXIST ANY PROVISION IN THE ACT TO ENABLE THE PROCESSING AS TCS RETURNS AND HENCE, A P ROPOSAL WAS MADE TO INSERT A PROVISION IN THIS REGARD AND ALSO THE POST PROVISION WAS INCORPORATED THE MECHANISM FOR COMPUTATION OF LATE FEES PAYABLE U/S. 234E OF THE ACT. THUS, WE NOTE THAT A PERUSAL OF THE MEMORANDUM EXPLAINING THE INSERTION OF PROVISION RELATING TO INSERTION OF CLAUSE (C) TO SEC. 200A OF THE ACT CLARIFIES THE INTENTION OF THE LEGISLATURE IN INSERTING THE SAID PROVISION. THE FINANCE BILL FURTHER CLEARLY PROVIDES THAT THE AMENDMENT TOOK EFFECT FROM 01.06.2015, SO THERE IS NO INDICATION WHA TSOEVER THAT CLAUSE (C) OF SECTION 200A IS RETROSPECTIVE OR CLARIFICATORY IN NATURE. THEREFORE, THE AO IS NOT EMPOWERED TO LEVY LATE FEES U/S. 234E OF THE ACT BEFORE 01.06.2015. THEREFORE, IN THE LIGHT OF THE AFORESAID DISCUSSION AND THE RATIO LAID BY THE PUNE BENCH IN MAHARASTRA CRICKET ASSOCIATION ( SUPRA ), ITA NO. 3 59 /CTK/201 7 4 WE HOLD THAT THE AMENDMENT [CLAUSE (C)] WAS INSERTED U/S. 200A OF THE ACT WHICH HAS BEEN GIVEN EFFECT FROM 01.06.2015 IS PROSPECTIVE IN NATURE, AND NO COMPUTATION OF LATE FEE FOR THE DEMAND OR THE INTIM ATION FOR THE LATE FEE U/S. 234E COULD BE MADE FOR THE TDS DEDUCTED FOR THE RESPECTIVE ASSESSMENT YEARS PRIOR TO 01.06.2015. THEREFORE, THE INTIMATION U/S. 200A OF THE ACT BY THE AO, TDS FOR PAYMENT OF LATE FEE U/S. 234E OF THE ACT FOR THE RESPECTIVE ASSES SMENT YEARS PRIOR TO 01.06.2015 IS WITHOUT ANY AUTHORITY OF LAW. IN THE LIGHT OF THE AFORESAID VIEW, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO AO THAT THE LATE FEE LEVIED FOR THE PERIOD OF DEL AY OF FILING RETURN PRIOR TO 01.06.2015 NEED TO BE DELETED. WE FURTHER CLARIFY THAT THE AO IS WELL WITHIN HIS JURISDICTION TO LEVY LATE FEE U/S. 234E OF THE ACT FOR THE PERIOD STARTING ONLY FROM 01.06.2015 TO THE DATE OF ACTUAL FILING OF THE TDS RETURN. IN SUM AND SUBSTANCE, THE LEVY OF LATE FEE U/S. 234E OF THE ACT IS VALID FROM THE PERIOD FROM 01.06.2015 TO THE DATE OF ACTUAL FILING OF THE TDS RETURN AND THE BALANCE FEES LEVIED EARLIER TO 01.06.2015 IS DIRECTED TO BE DELETED. 5 . RESPECTFULLY FOLLOWING T HE ABOVE OBSERVATIONS OF THE TRIBUNAL IN THE AFORESAID CASE AND LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE CIT(A) AND DIRECT THE AO TO DELETE LATE FEE OF RS. 14 , 0 00 / - FOR QUARTER - 2 (2 6 Q) LEVIED U/S.234E OF THE ACT IN ASSESSMENT YEAR 201 3 - 201 4 . ACCORDINGLY, WE ALLOW THE SOLE GROUND RAISED BY THE ASSESSEE . 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 11 / 06 / 20 20 . SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 11 /06 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - BIBHUTA NANDA PANDA , 1764, NAYAPALLI, BHUBANESWAR KHURDA - 751012 2. / THE RESPONDENT - DCI T, CENTRAL PROCESSING CELL - TDS, VAISHALI, GAJIYABAD(UP) ITA NO. 3 59 /CTK/201 7 5 / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , /ITAT, CUTTACK 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//