Sh. Kaur Chand Jain, Bathinda V. The Deputy Commissioner of Income Tax, Gajiabad

ITA 378/ASR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9564 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-08-2016
• Assessment Year: 2013-2014
• Appeal Filed On: 10-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154

Judgement Text

ITA NOS. 378 & 379(ASR)/2015 AYS. 2013-14 & 2014-15 2 PER A.D. JAIN, JM: THESE ARE TWO APPEALS OF DIFFERENT ASSESSES FOR THE ASSESSMENT YEARS 2012-13 & 2013-14 AGAINST THE SEPARATE ORDERS , DATED 15.05.2015 & 28.05.2015, PASSED BY THE LD. CIT(A), BATHINDA. AS THE ISSUE INVOLVED IN BOTH APPEALS IS COMMON, THEY ARE BEING DISPOSED OF BY THIS COMPOSITE ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEE, IN ITA NO.378(ASR)/2015, FOR THE A SSESSMENT YEAR 2012-13 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL WHICH ARE COMMON IN OTHER APPEAL: 1. THAT THE LD. CIT(A), BATHINDA HAS ERRED IN CONF IRMING THE PROCESSING FEE CHARGED U/S 200A READ WITH SECTION 2 34E BEFORE 1.6.15. 2. THAT THE LD. CIT(A), BATHINDA HAS ERRED IN LAW I N DISMISSING THE GROUND OF APPELLANT AS SECTION 200A DOES NOT PE RMIT THE DCIT GHAZIABAD FOR CHARGING PROCESSING FEE. 3. THAT THE CASE OF THE APPELLANT HAS BEEN SETTLED IN THE CASE OF SIBIA HEALTH CARE PRIVATE LTD. VIDE APPEAL NO. 90 D ATED 9.6.15. 4. THAT THE APPELLANT HAS THE RIGHT TO ADD OR DELE TE ANY GROUND OR GROUNDS OF APPEAL AT THE TIME OF HEARING. 5. THAT THE PROCEEDING FEE CHARGED MAY BE DELETED. 3. VIDE INTIMATION DATED 27.04.2014, ISSUED UNDER S ECTION 154 OF THE I.T.ACT, 1961, LATE FILING FEE OF RS.12,000/- WAS I MPOSED UNDER SECTION 234E OF THE ACT ON THE ASSESSEE BY THE TDS (CPC), T DS FORM NO.26Q, FOR THE 4 TH QUARTER OF THE FINANCIAL YEAR 2012-13, WHICH WAS FILED ON 04.09.2013. ITA NOS. 378 & 379(ASR)/2015 AYS. 2013-14 & 2014-15 4 BOARD AS CONVEYED VIDE CIRCULAR NO.7/2014 DATED 04 .03.2014, EXTENDING THE TIME LIMIT OF FURNISHING THE TDS STAT EMENTS OF THE FINANCIAL YEAR 2012-13 (QUARTERS 2 ND TO 4 TH ) AND FOR THE FINANCIAL YEAR 2013-14 (QUARTERS IST TO 3 RD ) FOR GOVERNMENT DEDUCTOR TILL 31.03.2014; THAT ACCORDINGLY, THE AFORE-MENTIONED RELAXATION IS INA PPLICABLE TO THE ASSESSEE, WHICH IS NOT A GOVERNMENT DEDUCTOR; THAT WHEREAS IT IS TRUE THAT SECTION 234E HAS BEEN PROPOSED TO BE INCORPORA TED IN SECTION 200A BY THE FINANCE ACT, 2015, W.E.F. 01.06.2015, IT CAN NOT BE SAID THAT THE IMPUGNED INTIMATION ISSUED BY THE CPC, GHAZIABAD CO NTAINED THE LATE FILING FEE, AS ADJUSTMENT PURSUANT TO THE PROCESS ING OF THE TDS STATEMENT; THAT ON THE CONTRARY, SUCH FEE HAS BEEN MENTIONED IN THE INTIMATION WHICH ALSO SERVES AS THE NOTICE OF DEM AND FOR THE SAID AMOUNT; THAT IT IS APPARENT THAT THE INTIMATION UN DER SECTION 200A TO THE ACT HAS BEEN USED BY THE CPC FOR COMMUNICATING THE AUTOMATIC AND COMPENSATORY FEE PAYABLE U/S 234E BY THE DEDUCTOR A SSESSEE; THAT THE SAME CANNOT BE READ AS AN ADJUSTMENT U/S 200A OF TH E ACT; THAT CHARGE OF FEE U/S 234E STANDS ON A SEPARATE FOOTING AND HAS BEEN RECKONED NOT WITH REFERENCE TO THE CONTENTS OF THE TDS STATEMENT BUT WITH THE DATE OF FILING OF THE SAID STATEMENT; THAT THEREFORE, THE C HARGE OF LATE FILING IS SEPARATE AND NOT AN ADJUSTMENT U/S 200A OF THE ACT ; THAT IT IS CONSIDERED THAT IF THE STATIONERY OF THE INTIMATION HAS BEEN USED BY THE CPC TO EXPEDITIOUSLY COMMUNICATE THE AUTOMATIC CHAR GE OF LATE FEE TO THE DEDUCTOR; THAT THIS PROPOSITION IS STRENGTHENED B Y THE TRITE LAW THAT IF A ITA NOS. 378 & 379(ASR)/2015 AYS. 2013-14 & 2014-15 6 AUTHORITY FOR ENFORCEMENT OF NOTICES UNDER SECTION 234E OF THE ACT. THE LD. CIT(A), THUS, HELD THAT THERE WAS NO CAUSE FOR INTERFERENCE IN THE LEVY UNDER QUESTION. 5. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL B EFORE US. 6. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER , THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS, STATING, THAT THE MA TTER IS COVERED IN ITS FAVOUR BY SIBIA HEALTHCARE PVT. LIMITED. VS. DCIT , 171 TTJ (ASR)(145); 121 DTR 81 (ASR) (TRIBUNAL). 7. THE LD. DR, ON THE OTHER HAND, HAS CONTENDED THA T WHEREAS IN THE CASE OF SIBIA HEALTHCARE PVT. LTD (SUPRA), THE TD S STATEMENT WAS FILED ON 19.02.2014 AND THE INTIMATION LEVYING THE FEE WAS D ATED 11.01.2014, IN THE PRESENT CASE, THE STATEMENT WAS FILED ON 04.09. 2013 AND THE INTIMATION IS DATED 27.04.2014. 8. WE HAVE PERUSED THE WRITTEN SUBMISSIONS AND HAVE HEARD THE LD. DR. WE HAVE ALSO EXAMINED THE RECORD CAREFULLY. IN SIBIA HEALTHCARE PRIVATE LIMITED (SUPRA), IT HAS BEEN HELD THAT PR IOR TO 01.06.2015, THERE WAS NO ENABLING PROVISION IN SECTION 200A OF THE A CT FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEE UNDER SECTION 234 E; THAT AT THE RELEVANT POINT OF TIME, THE LIMITED MANDATE OF SECTION 200A PERMITTED COMPUTATION OF AMOUNT RECOVERABLE FROM OR PAYABLE T O, THE TAX DEDUCTOR AFTER MAKING THE FOLLOWING ADJUSTMENTS: ITA NOS. 378 & 379(ASR)/2015 AYS. 2013-14 & 2014-15 8 THAT PRIOR TO 01.06.2015, THERE WAS NO ENABLING PRO VISION OF SECTION 200A OF THE ACT HAVE RAISED. 9. THE FACTS IN THE PRESENT CASE, ARE ENTIRELY P ARI MATERIA WITH THOSE IN SIBIA HEALTHCARE PVT. LTD. (SUPRA), THEREFORE , RESPECTFULLY FOLLOWING THE DECISION OF SIBIA HEALTHCARE PVT. LTD. (SUPRA ), WE HOLD THAT IN THE PRESENT CASE ALSO, THE IMPUGNED LEVY OF FEE IS NOT SUSTAINABLE IN LAW. 9. APROPOS THE CONTENTION OF THE DEPARTMENT THAT WH EREAS IN SIBIA HEALTHCARE PVT. LTD. (SUPRA), THE TDS STATEMENT WA S FILED ON 19.02.2014 AND THE INTIMATION LEVYING FEE WAS ISSUED ON 11.01. 2014, IN THE PRESENT CASE, THE STATEMENT WAS FILED ON 4.9.2013 AND THE I NTIMATION IS DATED 27.04.2014, THIS DOES NOT MAKE ANY DIFFERENCE AT ALL. THE FINANCIAL YEAR IN WHICH THE STATEMENT WAS FILED REMAINS THE SAME IN BOTH THE YEARS. IN SIBIA HEALTHCARE PVT. LTD (SUPRA), AS WELL AS IN THE PRESENT CASE, SUCH FINANCIAL YEAR IS F.Y. 2013-14. AS SUCH, LIKE IN S IBIA HEALTHCARE PVT. LTD, (SUPRA), HERE TOO, THE LEVY COULD HAVE AT BEST BEE N MADE UPTO 31.03.2015 ONLY. 10. FOR THE ABOVE DISCUSSION, THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AND THE LEVY OF FEE IS DELETED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 12. NOW WE TAKE UP ITA NO.379(ASR)/2015 FOR THE A.Y . 2013-14, IN THE CASE OF SARTAJ SINGH, BATHINDA. THE FACTS IN THIS A PPEAL ARE EXACTLY THE SAME, AS THOSE IN THE CASE OF KAUR CHAND JAIN, BAT HINDA, IN ITA NO.378(ASR)/2015, DECIDED BY US, HEREINABOVE. THERE FORE, OUR