Sh. Sartaj Singh, Bathinda V. The Dy Commissioner Of Income Tax, Ghaziabad

ITA 379/ASR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9563 (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: DB
• Next Hearing Date: 03-08-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 10-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.378(ASR)/2015 ASSESSMENT YEAR: 2012-13 PAN :AMRKI1015E SH. KAUR CHAND JAIN, VS. DEPUTY COMMISSIONER OF I NCOME TAX, M/S. JAIN TRADERS, CPC (TDS), GHAZIABAD. RAMAN MANDI, BATHINDA (APPELLANT) (RESPONDENT) ITA NO.379(ASR)/2015 ASSESSMENT YEAR: 2013-14 PAN :AMRSI6985D SH. SARTAJ SINGH, VS. DEPUTY COMMISSIONER OF INCOM E TAX, 22457C, SHANT NAGAR, CPC (TDS), GHAZIABAD. NEAR GURBAX NAGAR SINGH ADVOCATE, BATHINDA (APPELLANT) (RESPONDENT) APPELLANTS BY : WRITTEN SUBMISSIONS RESPONDENT: SH. RAHUL DHAWAN, DR DATE OF HEARING : 03/08/2016 DATE OF PRONOUNCEMENT: 15/09/2016 ORDER 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 3 4. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT(A) DISMISSED THE ASSESSEES APPEAL, HOLDING THAT IN THE APPELLATE PR OCEEDINGS BEFORE HIM, IT HAD BEEN CONTENDED THAT THE PROVISIONS OF SECTION 2 00A OF THE ACT DO NOT PERMIT CHARGING OF FEE UNDER SECTION 234E AND THAT THE PROVISIONS OF SECTION 234E(3) OF THE ACT REQUIRE THAT THE LATE FILING FEE BE PAID BEFORE FILING THE STATEMENT MANDATED BY SECTION 200(3) OF THE ACT; THAT SINCE IN THE PRESENT CASE, THE STATEMENT WAS ACCEPTED WITHOU T THE LATE FILING FEE, THE SAME CANNOT BE CHARGED EX-POST FACTO; THAT THE FINANCE ACT, 2015 HAS PROPOSED AN AMENDMENT IN SECTION 200A INCORPORA TING THE PROVISIONS OF SECTION 234E ONLY W.E.F. 01.06.2015; THAT ON THIS BASIS IT WAS ARGUED THAT THE PROPOSED AMENDMENT IN THE ACT MAKES IT CLEAR THAT THERE WAS NO PROVISION TO DEMAND LATE FILING FEE UN DER SECTION 234E OF THE ACT BEFORE THE AMENDMENT OF SECTION 200A; THAT IT WAS, THUS, ARGUED THAT THE LATE FILING FEE OF RS.12,000/- LEVIED ON THE ASSESSEE BE DELETED; THAT SECTION 234E HAS BEEN INTRODUCED IN THE ACT W.E.F. 01.07.2012, WHICH EXCLUSIVELY APPLIES TO TDS STATEMENTS DELIVER ED ON OR AFTER THE IST DAY OF JULY, 2012; THAT THIS LEVY IS PROCEDURAL AND IPSO FACTO IN NATURE BEING EXIGIBLE @ RS.200/- PER DAY DURING WHICH, T HE DEFAULT OF NON- FURNISHING OF TDS STATEMENT WITHIN THE STIPULATED P ERIOD/TIME; THAT, HOWEVER, THE STATUTE DOES NOT RECOGNIZED ANY REMISS ION IN THE SAID FEE FOR WHATEVER REASONS EXCEPT FOR THE CBDT TO ORDER A RELAXATION IN THE RIGOURS OF THE PROVISIONS OF SECTION 234E OF THE AC T, W.E.F. 01.10.2014, IN EXERCISE OF ITS POWER U/S 119(2)(A) OF THE ACT; THA T THIS WAS SO DONE BY THE 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 5 POWER IS EXPLICITLY CONFERRED BY STATUTE, ITS EXERC ISE IS NOT VITIATED MERELY BECAUSE A WRONG SECTION OR RULE OR FORM HAS BEEN RE FERRED TO; THAT SUB- SECTION (3) OF SECTION 234E MANDATES THAT THE LATE FILING FEE SHOULD BE PAID BEFORE DELIVERING THE TDS STATEMENT AND THI S HAS BEEN TAKEN AS A GROUND BY THE ASSESSEE TO DENY THE VERY EX-POST FA CTO; THAT THIS ARGUMENT DOES NOT ASSIST THE REASONING CONVASSED BY THE ASSESSEE IN AS MUCH AS NON-ACCEPTANCE OF THE TDS STATEMENT BY THE CPC IN THE ABSENCE OF LATE FILING FEE UNDER SECTION 234E WOUL D ONLY HAVE ENHANCED THE AMOUNT OF LEVY AS IT IS RECKONED ON A DAILY BAS IS TILL THE DEFAULT CONTINUES; THAT THE EX-POST FACTO LEVY ONLY EFFECT UATES THE PROVISIONS OF SECTION 234E OF THE ACT AND IN NO MANNER DEFEATS TH E CHARGE ITSELF; THAT THE ASSESSEE HAS FURTHER CONVASSED AN INTERIM ORDER IN A WRIT PETITION BY THE HONBLE HIGH COURT OF KARNATAKA, IN W.P. NO.69 18-6938/2014 (T-IT); THAT IN SAID THE PETITION, THE PETITIONERS HAVE QU ESTIONED THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF SECTIO N 234E OF THE ACT; THAT IT WAS HELD THAT PENDING CONSIDERATION OF THE WRIT PE TITION, IT WAS DESIRABLE THAT ENFORCEMENT OF NOTICES UNDER THE SAID SECTION ISSUED BY THE CPC, GHAZIABAD BE STAYED UNTIL FURTHER ORDERS; THAT SIMI LAR ORDERS OF THE HONBLE HIGH COURT OF RAJASTHAN, JODHPUR IN C.W.P. NO. 1981 OF 2014 AND OF THE HONBLE BOMBAY HIGH COURT IN W.P. NO.7 71 OF 2014 HAVE BEEN CITED; THAT THESE INTERLOCUTORY ORDERS HAVING BEEN CONSIDERED, NO EMBARGO CAN BE READ IN THE SAME SO AS TO BE AN IMPE DIMENT IN THE DISPOSAL OF THE APPEAL, FOR THE REASONS THAT LD CI T(A) WAS NOT AN 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 7 (A) AFTER MAKING ADJUSTMENT ON ACCOUNT ARITHMETICA L ERROR AND INCORRECT CLAIM, APPARENT FROM ANY INFORMATIO N IN THE STATEMENT - SECTION 200A(1)(A) (I)(II). (B) AFTER MAKING ADJUSTMENT FOR INTEREST IF ANY C OMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STA TEMENT. SECTION 200A(1)(B) THE TRIBUNAL FURTHER OBSERVED THAT NO OTHER ADJUSTM ENTS IN THE AMOUNT REFUNDABLE TO OR RECOVERABLE FROM, THAT THE TAX DE DUCTOR, WERE PERMISSIBLE, IN ACCORDANCE WITH LAW, AS IT EXISTED AT THAT POINT OF TIME I.E., BEFORE THE AMENDMENT OF SECTION 200A OF THE A CT W.E.F. 01.06.2015; THAT THUS, IN THE ABSENCE OF THE ENABLING PROVISION UNDER SECTION 200A, NO SUCH LEVY COULD BE EFFECTED IN THE COURSE OF AN Y INTIMATION THEREUNDER; THAT 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 WHIC H THE RELATED TDS STATEMENT IS FILED, AND THE RELATED TDS STATEMENT W AS, IN THAT CASE, FILED ON 19.02.2014, SUCH A LEVY COULD ONLY HAVE BEEN MAD E AT BEST WITHIN 31.03.2015; THAT THAT TIME IT HAD ELAPSED AND DEFEC T WAS THUS NOT CURABLE EVEN AT THAT STAGE; THAT THE IMPUGNED LEVY OF FEE UNDER SECTION 234E WAS, THUS, UNSUSTAINABLE IN LAW. THE TRIBUNAL , ON THE FOLLOWING BASIS, UPHELD AND DELETED THE LEVY OF FEE UNDER S ECTION 234E OF THE ACT. 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 ITA NOS. 378 & 379(ASR)/2015 AYS. 2013-14 & 2014-15 9 OBSERVATIONS IN THE CASE OF KAUR CHAND JAIN (SUPRA) ARE SQUARELY APPLICABLE, MUTATIS MUTANDIS, TO THIS APPEAL. IN VI EW OF THOSE OBSERVATIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED . 13. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/09/201 6. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 15/09/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES:1) SH. KAUR CHAND JAIN, RAMAN MANDI BATHINDA. (2) SH. SARTAJ SINGH, SHANT NAGAR, BATHIN DA. 2. THE DCIT, GHAZIABAD. 3. THE CIT(A), BATHINDA. 4. THE CIT, BATHINDA. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.