TAMIL NADU HANDLOOM WEAVERS CO -= OPERATIVE SOCIETY LIMITED, MUMBAI V. ITO (TDS) - 2(3)(2), MUMBAI

ITA 3712/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4233 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 28-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGH
• Keywords: TDS
• Section: 234E; 200A; 22

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL E BENCH MUMB AI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.3712/MUM/2019 (ASSESSMENT YEAR 2013-14) ITA NO.3713/MUM/2019 (ASSESSMENT YEAR 2014-15) ITA NO.3714/MUM/2019 (ASSESSMENT YEAR 2015-16) TAMIL NADU HANDLOOM WEAVERS CO- OPERATIVE SOCIETY LTD., 204, UDYOG MANDIR NO.2, 7- C, PITAMBER LANE, MAHIM (W), MUMBAI-400016 P AN: AAAAH2788P VS. ITO (TDS)-2(3)(2), MUMBAI. APPELLANT RESPONDENT APPELLANT BY : NONE REVENUE BY : SHRI AMIT PRATAP SINGH (DR) DATE OF HEARING : 01.10.2020 DATE OF PRONOUNCEMEN T : 22.10.2020 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER SAKTIJIT DEY, JUDICIAL MEMBER; 1. THE AFORESAID APPEALS ARISE OUT OF A COMMON ORDER D ATED 04.06.2018 OF LD. COMMISSIONER OF INCOME-TAX (APPEALS) 60, MUMBAI [ FOR SHORT LD. CIT(A)]. 2. ALL THESE APPEALS HAVE BEEN FILED BELATEDLY WITH A DELAY OF 255 DAYS. THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDONATI ON OF DELAY SUPPORTED BY AFFIDAVIT. ON PERUSING SUCH APPLICATION AND AFFIDAV IT, WE ARE OF THE VIEW THAT ITA NO. 37 12, 3713 & 3714 MUM 2019 TAMIL NADU HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD. 2 THE DELAY IN FILING THE APPEALS WAS DUE TO REASONAB LE CAUSE. HENCE, CONDONATION THE DELAY, WE ADMIT THE APPEALS FOR ADJ UDICATION ON MERITS. 3. THOUGH, THE ASSESSEE HAS RAISED SEVERAL LENGTHY AN D ARGUMENTATIVE GROUNDS IN THE APPEALS, HOWEVER, ONLY COMMON ISSUE ARISING IN ALL THE APPEALS IS WITH REGARD TO FEE LEVIED UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENTS OF TAX DEDUCTED AT SOURCE UNDER SECTION 200A OF THE ACT FOR VARIOUS QUARTERS RELATING TO FINANCIAL YEAR 2012-13 , 2013-14 & 2014-15. 4. WHEN THE APPEALS WERE CALLED FOR HEARING, NO ONE W AS PRESENT ON BEHALF OF ASSESSEE TO REPRESENT THE CASE. HOWEVER, CONSIDERIN G THE NATURE OF DISPUTE, WE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA TH E ASSESSEE AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE A ND PERUSED THE MATERIAL AVAILABLE ON RECORD. BRIEFLY THE FACTS ARE, THE ASS ESSEE IS STATED TO BE A GOVERNMENT OF TAMIL NADU UNDERTAKING DEALING/SELLIN G HANDLOOM PRODUCTS OF TAMIL NADU. IT HAS VARIOUS BRANCHES IN INDIA AND ONE AMONGST THEM BEING IN MUMBAI. FOR DIFFERENT QUARTERS OF FINANCIAL YEAR 2012-13 TO 2014-15, THE ASSESSEE FILED ITS TDS STATEMENTS AS PROVIDED UNDER SECTION 200(3) OF THE ACT. HOWEVER, SUCH TDS STATEMENTS WERE FILED BEYOND THE PRESCRIBED TIME LIMIT. WHILE PROCESSING THE TDS STATEMENTS UNDER SECTION 2 00A OF THE ACT, THE ASSESSING OFFICER AS PER CLAUSE-(1)(C) OF SECTION 2 00A CHARGED FEES UNDER ITA NO. 37 12, 3713 & 3714 MUM 2019 TAMIL NADU HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD. 3 SECTION 234E OF THE ACT FOR THE DELAY IN FILING THE TDS STATEMENTS. CHALLENGING THE LEVY OF FEE UNDER SECTION SECTION 2 34E OF THE ACT, THE ASSESSEE FILED APPEALS BEFORE LD. CIT(A). THOUGH, I N COURSE OF HEARING BEFORE THE FIRST APPELLATE AUTHORITY THE ASSESSEE MADE VAR IOUS SUBMISSIONS AND ALSO CITED NUMBER OF JUDICIAL PRECEDENTS IN SUPPORT OF I TS CLAIM THAT FEE UNDER SECTION 234E OF THE ACT CANNOT BE CHARGED WHILE PRO CESSING THE TDS STATEMENTS UNDER SECTION 200A FOR ANY PERIOD PRIOR TO 01.06.2015, HOWEVER, LD. CIT(A) DID NOT FIND MERIT IN SUCH SUBMISSIONS. RELYING UPON SOME JUDICIAL PRECEDENTS LD. CIT(A) UPHELD THE LEVY OF F EE UNDER SECTION 234E OF THE ACT. THE REASONING ON THE BASIS OF WHICH LD. CI T(A) CAME TO SUCH CONCLUSION IS, SINCE SECTION 234E OF THE ACT WAS IN THE STATUTE MUCH EARLIER, THE AMENDMENT MADE TO SECTION 200A BY INSERTING CLA USE-(1)(C) IS ONLY CLARIFICATORY IN NATURE. 6. HAVING CONSIDERED THE SUBMISSIONS OF LD. DEPARTMENT AL REPRESENTATIVE, WE FIND THAT SECTION 234E OF THE ACT CONTEMPLATING LEV Y OF FEE FOR LATE FILING OF TDS STATEMENT WAS INTRODUCED TO THE STATUTE W.E.F 1 0.07.2012. HOWEVER, NO SUCH CORRESPONDING AMENDMENT WAS MADE TO SECTION 20 0A OF THE ACT EMPOWERING THE AUTHORITY CONCERNED TO LEVY FEE UNDE R SECTION 234E OF THE ACT, WHILE PROCESSING THE TDS STATEMENT. BY FINANCE ACT 2015 CLAUSE-(C) TO SECTION 200A(1) WAS INTRODUCED W.E.F. 01.06.2015 EM POWERING THE AUTHORITY ITA NO. 37 12, 3713 & 3714 MUM 2019 TAMIL NADU HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD. 4 CONCERNED TO LEVY FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT. THEREF ORE, PRIOR TO 01.06.2015 THERE WAS NO SPECIFIC PROVISION UNDER SECTION 200A OF THE ACT FOR LEVY OF LATE FILING FEE UNDER SECTION 234E OF THE ACT. THUS, TAK ING NOTE OF THE AFORESAID FACTUAL POSITION, DIFFERENT BENCHES OF THE TRIBUNAL CONSISTENTLY HELD THAT PRIOR TO 01.06.2015 PROVISIONS OF SECTION 200A OF THE ACT DID NOT CONTEMPLATE LEVY OF FEE UNDER SECTION 234E OF THE ACT. THEREFORE, IT WAS HELD, EVEN-THOUGH SECTION 234E OF THE ACT WAS IN THE STATUTE PRIOR TO 01.06.2015, HOWEVER, IN ABSENCE OF ANY ENABLING PROVISION, NO FEE UNDER SEC TION 234E OF THE ACT CAN BE LEVIED FOR LATE FILING OF TDS STATEMENT FOR ANY PERIOD PRIOR TO 01.06.2015. THE SAME VIEW WAS EXPRESSED BY THE HONBLE KARNATAK A HIGH COURT IN CASE OF FATHERAJ SANGHVI & ORS VS. UNION OF INDIA & ORS [2016] 289 CTR 602 (KAR.). IN FACT, IN CASE OF EMSONS EXIM PVT. LTD. V/S ITO, ITA NO . 4406 / MUM ./ 2017 & ORS . DATED 28TH AUGUST 2019, BY MAJORITY VIEW IT WAS HELD THAT LEVY OF FEE UNDER SECTION 234E OF THE ACT CANNOT BE MADE IN RESPECT OF A PERIOD PRIOR TO 01.06.2015 WHILE PROCE SSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT. ADMITTEDLY, NO DECIS ION OF THE HONBLE JURISDICTIONAL HIGH COURT ON THE DISPUTED ISSUE IS AVAILABLE AS ON DATE. THOUGH, LD. CIT(A) IS CORRECT IN OBSERVING THAT THE RE ARE CONTRARY DECISIONS FROM OTHER HIGH COURTS, HOWEVER, FOLLOWING THE WELL -SETTLED LEGAL PRINCIPLE ITA NO. 37 12, 3713 & 3714 MUM 2019 TAMIL NADU HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD. 5 THAT IN CASE OF CONTRARY VIEWS BEING EXPRESSED BY D IFFERENT COURTS ON A PARTICULAR ISSUE, THE VIEW FAVOURABLE TO THE ASSESS EE HAS TO BE TAKEN, WE ARE MORE INCLINED TO FOLLOW THE VIEW EXPRESSED BY HONB LE KARNATAKA HIGH COURT IN CASE OF FATHERAJ SANGHVI & ORS VS. UNION O F INDIA & ORS (SUPRA) AS WELL AS BY THE TRIBUNAL IN CASE OF EMSONS EXIM PVT. LTD. (SUPRA). THEREFORE, WE DIRECT THE ASSESSING OFFICER TO VERIFY THE RELEV ANT FACTS AND NOT TO CHARGE ANY FEE UNDER SECTION 234E OF THE ACT FOR ANY PERIOD WHICH IS PRIOR TO 01.06.2015. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON 22 ND OCTOBER 2020. SD/- SD/- N.K. PRADHAN SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 22.10.2020 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR E BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST . REGISTRAR ITA T, MUMBAI