HEMAL S. GONDALIA, MUMBAI V. DCIT CPC (TDS), GHAZIABAD

ITA 3761/MUM/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3609 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 18-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH SMC MUMBAI BEFORE SHRI A.D.JAIN , JUDICIAL MEMBER . . , ./ I.T.A. NO S . 3758, 3759, 3761 AND 3762/MUM/2015 ( / ASSESSMENT YEA RS : 2013 - 14 (24Q - 9) AND 2014 - 15 (24Q - 1) SHRI HEMAL S GONDALIA, 1403 A AND 1403B, 14 TH FLOOR, HIMGIRI, NEELKANTH VIHAR, SBK RAM MARG, GHATKOPAR (E), MUMBAI - 400077 / VS. DY.COMMISSIONER OF INCOME TAX GHASIABAD . ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AEWPG7329G / APPELLANT BY SHRI G C LALKA / RSPONDENT BY SHRI A JAY / DATE OF HEARING : 0 5. 0 7 . 201 6 / DATE OF PRONOUNCEMENT : 05. 07.2016 / O R D E R THESE FOUR APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER DATED 6.4.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), MUMBAI - 59. SINCE THE APPEALS BEFORE US RELATE TO THE SAME ASSESSEE, AND THE ISSUE INVOLVED THEREIN IS COMMON, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED TOGETHER, HEARD TOGETHER AND DISPOSED OF BY THIS CONSOLIDATED ORDER. ITA NO S . 3758, 3759, 3761 AND 3762/MUM/ 20 1 5 2 2. THE ONLY ISSUE WHICH ARISES FOR CONSIDERATION IS WITH REGARD TO LEVY OF FEE UNDER SECTION 234E OF THE INCOME - TAX ACT, 1961 (IN SHORT 'THE ACT') WHILE PROCESSING THE STATEMENT FURNISHED BY THE ASSESSEES UNDER SECTION 200A OF THE ACT. 3. FACTS OF THE CASE ARE THAT THE AO , B Y INVOKING THE PROVISIONS OF SECTION 200A , HAS RAISED A DEMAND AGAINST LEVY OF FEES OF RS.4800 FOR 2014 - 15 (24Q - 1 ST QUARTER), RS.14000/ - FOR 2014 - 15 (24Q - 2 ND QUARTER), RS.5200/ - FOR 2013 - 14 (24Q - 2 ND QUARTER), RS.17,000/ - FOR 2013 - 14 (24Q - 3RD QUARTER) , A ND RS.14200/ - FOR 2013 - 14 (24Q - 4 TH QUARTER) U/S 234E OF THE ACT. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE APPEALED BEFORE THE FIRST APPELLATE AUTHORITY (FAA) AND THE FAA SIMPLY BY FOLLOWING THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA V/S UNION OF INDIA DATED 9 TH FEBRUARY, 2015 , CONFIRMED THE ACTION OF THE AO , WITHOUT GOING INTO THE LEGAL AND FACTUAL ASPECT S OF THE MATTER. AGGRIEVED BY THE DECISION OF THE LD.CIT(A), THE ASSESSEE PREFERRED THESE APPEAL BEFORE US . 4. AT THE TIME OF HEARING, THE LD. COUNSEL INVITED MY ATTENTION TO THE PROVISIONS OF SECTION 200A, 234E AND THE FINANCE ACT, 2015 AND SUBMITTED THAT ACCORDING TO FINANCE ACT, 2015, THE AO IS EMPOWERED TO LEVY FEE UNDER SECTION 234E W.E.F.1.6.2015 AND PRIMA FACIE , THE ASSESSMENT YEARS INVOLVED IN THESE APPEALS ARE 2006 - 07 AND 2013 - 14. THEREFORE, THE LEVY OF FEES BY THE AO IS BAD IN LAW. THE LD.COUNSEL ALSO SUBMITTED THAT THIS ISSUE HAS ITA NO S . 3758, 3759, 3761 AND 3762/MUM/ 20 1 5 3 ALREADY BEEN DISCUSSED ELABORATELY BY THE V ARIOUS BENCHES OF TRI BUNAL AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE . HE ALSO SUBMITTED THAT RASHMIKANT KUNDALIA (SUPRA) IS RELEVANT ONLY TO THE PRE - AMENDMENT POSITION OF SECTION 234E OF THE ACT. IN SUPPORT OF HIS CONTENTION HE PLACED RELIANCE ON THE FOLLOWING DECISIO NS: A) SIBIA HEALTHCARE PVT LTD V/S DCIT IN I.T.A. NO.90/ASR/2015 (AY - 2013 - 14 ) ORDER DATED 9.6.2015; AND B) SMT. G. INDHIRANI V/S DCIT IN ITA NOS.1019, 1020 & 1021/MDS/2015 (AY - 2013 - 14) ORDER DATED 10.7.2015 5 . THE LD.DR DID NOT CONTROVERT THE AFORE SAI D CONTENTIONS OF THE LD.COUNSEL AND HE ALSO COULD NOT BRING ANY MATERIAL CONTRARY TO TAKE A DIFFERENT VIEW THAN THE VIEW SO TAKEN BY THE BENCHES OF THE TRIBUNAL. HE PLACED RELIANCE ON THE IMPUGNED ORDERS. 6 . I HAVE HEARD BOTH THE PARTIES AT LENGTH AND HAVE PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW AND CASE LAWS RELIED UPON BY RIVAL PARTIES. I FIND THAT THE ISSUE RAISED IN THESE APPEALS NOW STANDS COVERED BY THE TRIBUNAL DECISIONS AS MENTIONED ABOVE FOR THE SAKE O F CONVENIENCE I REPRODUCE HELD PORTION OF THE RESPECTIVE ORDER : IN THE CASE OF SIBIA HEALTHCARE PRIVATE LIMITED (SUPRA) THE TRIBUNAL HAS HELD AS UNDER (IN THIS DECISION , THE UNDERSIGNED IS THE CO - AUTHOR): 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OU R CONSIDERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER SECTION 246A(A), AND, THEREFORE, THE CIT(A) OUGHT TO HAVE EXAMINED LEGALITY OF ITA NO S . 3758, 3759, 3761 AND 3762/MUM/ 20 1 5 4 THE ADJUSTMENT MADE UNDER THIS INTIMATION IN THE LIGHT OF THE SCOPE OF THE SECTION 200A. LEARNED CIT(A) HAS NOT DONE SO. HE HAS JUSTIFIED THE LEVY OF FEES ON THE BASIS OF THE PROVISIONS OF SECTION 234E. THAT IS NOT THE I SSUE HERE. THE ISSUE IS WHETHER SUCH A LEVY COULD BE EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A. THE ANSWER IS CLEARLY IN NEGATIVE. NO OTHER PROVISION ENABLING A DEMAND IN RESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN ADMIT TED POSITION THAT IN THE ABSENCE OF THE ENABLING PROVISION UNDER SECTION 200A, NO SUCH LEVY COULD BE EFFECTED. AS INTIMATION UNDER SECTION 200A, RAISING A DEMAND OR DIRECTING A REFUND TO THE TAX DEDUCTOR, CAN ONLY BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR WITHIN WHICH THE RELATED TDS STATEMENT IS FILED, AND AS THE RELATED TDS STATEMENT WAS FILED ON 19TH FEBRUARY 2014, SUCH A LEVY COULD ONLY HAVE BEEN MADE AT BEST WITHIN 31ST MARCH 2015. THAT TIME HAS ALREADY ELAPSED AND THE DEFECT IS THUS NOT CURABLE EVEN AT THIS STAGE. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234 E IS UNSUSTAINABLE IN LAW. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED LEVY OF FEE UNDER SECTION 234E OF THE ACT. THE ASSESSEE GETS THE RELIEF ACCORDINGLY. IN THE CASE OF SMT. G. INDHIRANI(SUPRA) THE TRIBUNAL HAS HELD AS UNDER : 11. IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSE SSING OFFICER HAS EXCEEDED HIS JURISDICTION IN LEVYING FEE UNDER SECTION 234E WHILE PROCESSING THE STATEMENT AND MAKE ADJUSTMENT UNDER SECTION 200A OF THE ACT. THEREFORE, THE IMPUGNED INTIMATION OF THE LOWER AUTHORITIES LEVYING FEE UNDER SECTION 234E OF TH E ACT CANNOT BE SUSTAINED IN LAW. HOWEVER, IT IS MADE CLEAR THAT IT IS OPEN TO THE ASSESSING OFFICER TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEE PROVIDED THE LIMITATION FOR SUCH A LEVY HAS NOT EXPIRED. ACCORDINGLY, THE INTIMATION UND ER SECTION 200A AS CONFIRMED BY THE CIT(APPEALS) IN SO FAR AS LEVY OF FEE UNDER SECTION 234E IS SET ASIDE AND FEE LEVIED IS DELETED. HOWEVER, THE OTHER ADJUSTMENT MADE BY THE ASSESSING OFFICER IN THE IMPUGNED INTIMATION SHALL STAND AS SUCH. 7 . RESPECTFU LLY FOLLOWING THE PRINCIPLE LAID DOWN BY THE TRIBUNAL, I DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. ITA NO S . 3758, 3759, 3761 AND 3762/MUM/ 20 1 5 5 8 . RESULTANTLY, THE APPEAL S OF THE ASSESSEE ARE ALLOWED . PRONOUNCED ACCORDINGLY ON 5 TH JULY, 201 6 . 5 TH JULY, 2016 SD ( . . , / A.D. JAIN ) / JUDICIAL MEMBER MUMBAI: 5 TH JULY, 2016 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI