The Burberry Petro India Pvt. Ltd, Rampura Phul V. The Dy. Commissioner of Income Tax, Ghaziabad

ITA 39/ASR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7804 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 13-07-2017
• Assessment Year: 2014-2015
• Appeal Filed On: 07-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER I.T.A NOS. 38 & 39/(ASR)/2016 ASSESSMENT YEAR: 2014-15 TAN: AMRB12750D BURBERRY PETRO INDIA PVT. LTD. KACHERY BAZAR, RAMPURA PHUL-151103. VS. DY. C. I. T., CENTRALIZED PROCESSING CELL TDS, GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. NIPUN KHANNA (C. A .) RESPONDENT BY: SH. RAHUL DHAWAN (D. R.) DATE OF HEARING: 31.08.2017 DATE OF PRONOUNCEMENT: 15.09.201 7 ORDER PER T. S. KAPOOR (AM): THESE ARE TWO APPEALS FILED BY ASSESSEE AGAINST THE COMMON ORDER OF LD. CIT(A), BATHINDA DATED 20.05.2015 FOR ASST. YEAR: 2014-15. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ASSESSMENT ORDER PASSED BY LD. ASSESSI NG OFFICER U/S 234E OF THE INCOME TAX ACT, 1961, IS ILLEGAL AR BITRARY AND CONTRARY TO THE FACTS ON RECORDS AND THIS ILLEGALIT Y PERVADES O0VER ALL OTHER GROUNDS OF APPEAL, THAT THE WORTHY CIT(A) HAS FURTHER ERRED IN CONFIRMING THE SAME. 2. THAT NO COGNIZANCE HAS BEEN TAKEN EITHER BY HONOURABLE CIT APPEALS OR LD. ASSESSING OFFICER OF OUR PLEA THAT E NTIRE AMOUNT OF TDS WAS DULY DEPOSITED AND AS SUCH NO DET RIMENT WAS CAUSED TO REVENUE AND NUMBER OF CASE LAWS WERE PRESSED INTO SERVICE BUT BOTH THE LOWER AUTHORITIES FAILED TO RECORD ANY FINDING ON THE SAME. 3. THAT THE DECISION OF WORTHY CIT IS CONTRARY TO T HE DECISION OF INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH IN THE CASE OF SIBIA HEALTHCARE PRIVATE LIMITED VS. DY. COMMISSION ER OF ITA NOS. 38 & 39(ASR)/2016 ASSESSMENT YEAR: 2014-15 2 INCOME TAX (TDS) I.T.A. NO. 90/ASR/2015. THAT IT HA S FURTHER BEEN SUBMITTED THAT THE FINANCE ACT, 2015 HAS PROPO SED AN AMENDMENT IN SECTION 200A INCORPORATING THE PROVISI ONS OF SECTION 234E ONLY WITH EFFECT FROM 01.06.2015. ON T HIS BASIS IT HAS BEEN ARGUED THAT THE PROPOSED AMENDMENT IN T HE ACT MAKES IT CLEAR THAT THERE WAS NO PROVISION TO DEMAN D LATE FILING FEE U/S 234E OF THE ACT BEFORE THE AMENDMENT OF SECTION 200A. 4. THAT ON FACTS AND IN LAW PENALTY OF RS.52521/- S TANDS TO BE DELETED IN THE INTEREST OF EQUITY AND JUSTICE. 5. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, ALTE R OR/AND AMEND THE ABOVE GROUND OF APPEAL EITHER AT OR BEFOR E THE HEARING. 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE AP PEALS FILED BY ASSESSEE WAS TIME BARRED BY 164 DAYS AND STATED THA T THE ASSESSEE HAS FILED A PETITION SEEKING CONDONATION OF THIS DELAY. THE REASON FOR THE DELAY IS THAT MS. NIRMALA DEVI, THE SISTER OF THE D IRECTOR OF THE COMPANY WAS IN A VERY BAD SHAPE OF HEALTH AS SHE WAS DIAGNO SED WITH THE CANCER AND THE DIRECTOR HAD TO ATTEND TO HER AND ULTIMATEL Y THE SISTER OF DIRECTOR DIED ON 25.10.2015 AND AFTER COMPLETING ALL LAST RI TES THE APPEALS WERE FILED. THE LD. AR SUBMITTED THAT APPLICATION FOR CO NDONATION OF DELAY ALONGWITH AFFIDAVIT OF THE ASSESSEE WAS PLACED ON R ECORD. IN VIEW OF THE ABOVE IT WAS PRAYED THAT DELAY IN FILING THE APPEAL S BE CONDONED. 4. THE LD. DR HAD NO OBJECTION TO CONDONNATION OF D ELAY AND THEREFORE, DELAY WAS CONDONED AND ASSESSEE WAS DIRE CTED TO PROCEED WITH HIS ARGUMENTS. 5. THE LD. AR AT THE OUTSET SUBMITTED THAT THE APPE ALS FILED BY ASSESSEE ARE COVERED IN ITS FAVOUR BY THE ORDER OF HON'BLE AMRITSAR BENCH IN THE CASE OF SIBIA HEALTHCARE PRIVATE LIMITED, IN ITA NO.90(ASR)/2015 ITA NOS. 38 & 39(ASR)/2016 ASSESSMENT YEAR: 2014-15 3 FOR ASST. YEAR: 2013-14 WHICH THE HON'BLE TRIBUNAL HAD PRONOUNCED ON 09.06.2015. IT WAS SUBMITTED THAT THE SAID ORDER OF THE TRIBUNAL HAS BEEN FOLLOWED BY AMRITSAR BENCH IN THE CASE OF G.H. S. SANGUDHAUN SOCIETY IN ITA NO.260(ASR)/2015 FOR ASST. YEAR:2012 -13. IT WAS SUBMITTED THAT LATE FEE RELATED TO THE PERIOD BEFORE 01.04.20 15 AND HON'BLE TRIBUNAL HAS HELD THAT IN THE ABSENCE OF ENABLING PROVISION U/S 200A NO FEE CAN BE IMPOSED PRIOR TO 01.06.2015. 6. THE LD. DR FAIRLY AGREED THAT THE ISSUE WAS COVE RED IN FAVOUR OF ASSESSEE. 7. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ISSUE I N THESE APPEALS IS SQUARELY COVERED BY THE ORDER OF THE HON'BLE TRIBUN AL IN SIBIA HEALTHCARE PRIVATE LIMITED IN ITA NO. 90(ASR)2015 FOR ASST. YE AR 2013-14 VIDE ORDER DATED 09.06.2015. FOR THE SAKE OF CONVENIENCE, THE OPERATIVE PART OF THE TRIBUNAL ORDER IS REPRODUCED BELOW. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSE D THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. IN ADDITION TO HIS ARGUMENT ON THE MERITS, LEARNED COUNSEL HAS ALSO INVITED OUR ATTENTION TO THE REPORTS ABOUT THE DECISIONS OF VARIOUS HONBLE HIGH COURTS, INCLUDING HONBLE KERA LA HIGH COURT, IN THE CASE OF NARATH MAPILA LP SCHOOL VS UNION OF INDIA [ WP (C) 31498/2013(J)], HONBLE KARANATAKA HIGH COURT IN TH E CASE OF ADITHYA BIZOR P SOLUTIONS VS UNION OF INDIA [WP NO. 6918-69 38/2014(T-IT), HONBLE RAJASTHAN HIGH COURT IN THE CASE OF OM PRAK ASH DHOOT VS UNION OF INDIA [WP NO. 1981 OF 2014] AND OF HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS UNION OF INDI A [WP NO. 771 OF 2014], GRANTING STAY ON THE DEMANDS RAISED IN RESPE CT OF FEES UNDER SECTION 234E. THE FULL TEXT OF THESE DECISIONS WERE NOT PRODUCED BEFORE US. HOWEVER, AS ADMITTEDLY THERE ARE NO ORDERS FROM THE HONBLE COURTS ABOVE RETRAINING US FROM OUR ADJUDICATION ON MERITS IN RESPECT OF THE ISSUES IN THIS APPEAL, AND AS, IN OUR HUMBLE UNDERS TANDING, THIS APPEAL REQUIRES ADJUDICATION ON A VERY SHORT LEGAL ISSUE, WITHIN A NARROW ITA NOS. 38 & 39(ASR)/2016 ASSESSMENT YEAR: 2014-15 4 COMPASS OF MATERIAL FACTS, WE ARE PROCEEDING TO DIS POSE OF THIS APPEAL ON MERITS. 5. WE MAY PRODUCE, FOR READY REFERENCE, SECTION 234E OF THE ACT, WHICH WAS INSERTED BY THE FINANCE ACT 2012 AND WAS BROUGH T INTO EFFECT FROM 1ST JULY 2012. THIS STATUTORY PROVISION IS AS FOLLO WS: 234E. FEE FOR DEFAULTS IN FURNISHING STATEMENTS (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SE CTION 200 OR THE PROVISO TO SUBSECTION (3) OF SECTION 206C, HE S HALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CASE MAY BE. (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SUB-SECTION (3) OF SECTION 200 O R THE PROVISO TO SUB-SECTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR TH E PROVISO TO SUB-SECTION (3) OF SECTION 206C WHICH IS TO BE DELI VERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURCE O R TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTE R THE 1ST DAY OF JULY, 2012 6. WE MAY ALSO REPRODUCE THE SECTION 200A WHICH WA S INSERTED BY THE FINANCE ACT 2009 WITH EFFECT FROM 1ST APRIL 201 0. THIS STATUTORY PROVISION, AS IT STOOD AT THE RELEVANT POINT OF TIM E, WAS AS FOLLOWS: 200A: PROCESSING OF STATEMENTS OF TAX DEDUCTED AT S OURCE (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE, O R A CORRECTION STATEMENT, HAS BEEN MADE BY A PERSON DED UCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS D EDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSE D IN THE FOLLOWING MANNER, NAMELY: (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMAT ION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; ITA NOS. 38 & 39(ASR)/2016 ASSESSMENT YEAR: 2014-15 5 (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AM OUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND S ECTION 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PA YABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C ); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR: PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF T HE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION : FOR THE PURPOSES OF THIS SUB-SECTION , 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN TH E STATEMENT' SHALL MEAN A CLAIM, ON THE BASIS OF AN E NTRY, IN THE STATEMENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTR Y OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOUR CE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB- SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRA LIZED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUBSECTION. 7. BY WAY OF FINANCE ACT 2015, AND WITH EFFECT F ROM 1ST JUNE 2015, THERE IS AN AMENDMENT IN SECTION 200A AND THIS AMEN DMENT, AS STATED IN THE FINANCE ACT 2015, IS AS FOLLOWS: IN SECTION 200A OF THE INCOME-TAX ACT, IN SUB-SECT ION (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WITH EFFECT FROM THE 1ST DAY OF JUNE, 2015, NAMELY: (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 234E; (D) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF TH E AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST AN Y AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 23 4E AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE; ITA NOS. 38 & 39(ASR)/2016 ASSESSMENT YEAR: 2014-15 6 (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PA YABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D ); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR. 8. IN EFFECT THUS, POST 1ST JUNE 2015, IN THE COURSE OF PROCESSING OF A TDS STATEMENT AND ISSUANCE OF INTIMATION UNDER SECT ION 200A IN RESPECT THEREOF, AN ADJUSTMENT COULD ALSO BE MADE IN RESPEC T OF THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E. THERE IS NO DISPUTE THAT WHAT IS IMPUGNED IN APPEAL BEFORE US IS THE INTIMATION UNDER SECTION 200A OF THE ACT, AS STATED IN SO MANY WORDS IN THE IMPUGNED INTIMATION ITSELF, AND, AS THE LAW STO OD, PRIOR TO 1ST JUNE 2015, THERE WAS NO ENABLING PROVISION THEREIN FOR R AISING A DEMAND IN RESPECT OF LEVY OF FEES UNDER SECTION 234E. WHILE E XAMINING THE CORRECTNESS OF THE INTIMATION UNDER SECTION 200A, W E HAVE TO BE GUIDED BY THE LIMITED MANDATE OF SECTION 200A, WHICH, AT T HE RELEVANT POINT OF TIME, PERMITTED COMPUTATION OF AMOUNT I.T.A. NO.90 /ASR/2015 ASSESSMENT YEAR 2013-14 PAGE 6 OF 7 RECOVERABLE FRO M, OR PAYABLE TO, THE TAX DEDUCTOR AFTER MAKING THE FOLLOWING ADJUSTMENTS : (A). AFTER MAKING ADJUSTMENT ON ACCOUNT OF ARITH METICAL ERRORS AND INCORRECT CLAIMS APPARENT FROM ANY INFORMATION IN HE STATEMENT - SECTION 200A(1)(A) (B). AFTER MAKING ADJUSTMENT FOR INTEREST, IF AN Y, COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STATEME NT. - SECTION 200A(1)(B) 9. NO OTHER ADJUSTMENTS IN THE AMOUNT REFUNDABL E TO, OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBLE IN ACCORDA NCE WITH THE LAW AS IT EXISTED AT THAT POINT OF TIME. 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONS IDERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMP LATED UNDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER SECTION 246A(A), AND, THEREFORE, THE CIT(A) OUGHT TO HAVE EXAMINED LEGALI TY OF THE ADJUSTMENT MADE UNDER THIS INTIMATION IN THE LIGHT OF THE SCOP E OF THE SECTION 200A. LEARNED CIT(A) HAS NOT DONE SO. HE HAS JUSTIFIED TH E LEVY OF FEES ON THE BASIS OF THE PROVISIONS OF SECTION 234E. THAT IS NO T THE ISSUE HERE. THE ISSUE IS WHETHER SUCH A LEVY COULD BE EFFECTED IN T HE COURSE OF INTIMATION UNDER SECTION 200A. THE ANSWER IS CLEARLY IN NEGATI VE. NO OTHER PROVISION ENABLING A DEMAND IN RESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN ADMITTED 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 YEA R FROM THE END OF THE FINANCIAL YEAR WITHIN WHICH THE RELATED TDS STATEME NT IS FILED, AND AS THE ITA NOS. 38 & 39(ASR)/2016 ASSESSMENT YEAR: 2014-15 7 RELATED TDS STATEMENT WAS FILED ON 19TH FEBRUARY 20 14, 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 CURA BLE EVEN AT THIS STAGE. IN VIEW OF THESE DISCUSSIONS, AS ALSO I.T.A. NO.90 /ASR/2015 ASSESSMENT YEAR 2013-14 PAGE 7 OF 7 BEARING IN MIND ENTIRETY O F THE CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234 E IS UNSUST AINABLE IN LAW. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED LEVY OF FEE UNDER SECTION 234E OF THE ACT. THE ASSE SSEE GETS THE RELIEF ACCORDINGLY. WE FIND THAT THE APPEALS RELATE TO THE PERIOD BEFOR E 01.06.2015 AND THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL DATED 09.06.2015 IN THE CASE OF SIBIA HEALTHCARE PRIVATE LIMITED (SUPRA), WE ALLOW THE APPEALS FILED BY THE ASSESSEE. 8. IN NUTSHELL, THE APPEALS FILED BY THE ASSESSEE A RE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.09.2017 SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15.09.2017. /GP/SR. PS . COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER