ICT Society GSSS Jagga Ram Tirath, Bathinda V. The Dy. Commissioner of Income Tax, Ghaziabad

ITA 402/ASR/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8688 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-02-2017
• Assessment Year: 2013-2014
• Appeal Filed On: 28-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL DHAWANLD
• Assessee Lawyers: ASHWANI KALIA LD

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. 401 & 402(ASR)/2015 ASSESSMENT YEAR: 2013-14 TAN: - AMRI10762D ICT SOCIETY GSSS JAGGA RAM TIRATH, INCOME TAX, VILL:- JAGGA RAM TIRATH, DISTT. BATHINDA. VS. DY. COMMISSIONER OF CENTRALIZED PROCESSING CELL-TDS, GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. ASHWANI KALIA. (LD. C.A.) RESPONDENT BY: SH. RAHUL DHAWAN. (LD. D.R.) DATE OF HEARING: 15.02.2017 DATE OF PRONOUNCEMENT: 21.03.2017 ORDER PER N. K. CHOUDHRY (JM): THESE ARE TWO APPEALS FILED BY ASSESSEE AGAINST THE SEPARA TE ORDERS OF LEARNED CIT(A), BATHINDA, BOTH DATED 19.05 .2015, FOR ASST. YEAR: 2013-14. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THERE IS A D ELAY IN FILING OF APPEAL BY FOUR DAYS WHICH HAD OCCURRED DUE TO INADVE RTENT MISTAKE THEREFORE, IT WAS PRAYED THAT DELAY MAY BE CONDONED. ITA NOS.401 & 402(ASR)/2015 ASST. YEAR : 2013-14 2 3. THE LD. DR HAD NO OBJECTION TO CONDONE OF DELAY AND THEREFORE, DELAY WAS CONDONED AND ASSESSEE WAS DIRECTED TO PROCEED THAT HIS ARGUMENTS. 4. THE LD. DR AT THE OUTSET SUBMITTED THAT THE APPEALS FILED BY ASSESSEE IS COVERED IN ITS FAVOUR BY THE ORDER OF HON'BLE BENCH IN THE CASE OF SIBIA HEALTHCARE PRIVATE LIMITED, IN ITA NO.90( ASR)/2015 FOR ASST. YEAR: 2013-14 WHICH THE HON'BLE TRIBUNAL HAD PRON OUNCED ON 09.06.2015, IT WAS SUBMITTED THAT THE SAID ORDER OF T HE TRIBUNAL HAS BEEN FOLLOWED BY AMRITSAR BENCH IN THE CASE OF G.H.S. SA NGUDHAUN SOCIETY IN ITA NO.260(ASR)/2015 FOR ASST. YEAR:2012-13 . 5. THE LD. DR, HOWEVER, HEAVILY PLACED HIS RELIANCE ON T HE ORDER OF AUTHORITIES BELOW. 6. WE HAVE HEARD THE LD. DR AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ORIGINALLY THE LD. CIT (A) HAS ALLOWED RELIEF TO THE ASSESSEE VIDE APPELLATE ORDER DATED 05.02 .2015, HOWEVER, THE LD. CIT(A) VIDE ORDER DATED 19.05.2015 PASSED ORD ER U/S 154/250 AND RECTIFY THE MISTAKE BY DISMISSING THE EARLIER ALLOW ED APPEAL OF THE ASSESSEE. HOWEVER, WE FIND THAT THE ISSUE IN THESE APPEAL S IS SQUARELY COVERED BY THE ORDER OF THE HON'BLE TRIBUNAL IN SIBIA HEALTHCARE PRIVATE LIMITED IN ITA NO. 90(ASR)2015 FOR ASST. YEAR 2013-14 VIDE ITA NOS.401 & 402(ASR)/2015 ASST. YEAR : 2013-14 3 ORDER DATED 09.06.2015. FOR THE SAKE OF CONVENIENCE, T HE 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 ARGUM ENT ON THE MERITS, LEARNED COUNSEL HAS ALSO INVITED OUR ATTENTION TO T HE REPORTS ABOUT THE DECISIONS OF VARIOUS HONBLE HIGH COURTS, INCLUDING HO NBLE KERALA HIGH COURT, IN THE CASE OF NARATH MAPILA LP SCHOOL VS UN ION OF INDIA [WP (C) 31498/2013(J)], HONBLE KARANATAKA HIGH COURT IN THE CASE OF ADITHYA BIZOR P SOLUTIONS VS UNION OF INDIA [WP NO. 6918- 6938/2014(T-IT), HONBLE RAJASTHAN HIGH COURT IN THE CASE OF OM PRAKASH DHOOT VS UNION OF INDIA [WP NO. 1981 OF 201 4] AND OF HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS UNION OF INDIA [WP NO. 771 OF 2014], GRANTING STAY ON THE DE MANDS RAISED IN RESPECT OF FEES UNDER SECTION 234E. THE FULL TEXT O F 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 UNDERSTANDING, THIS APPEAL REQUIRES A DJUDICATION ON A VERY SHORT LEGAL ISSUE, WITHIN A NARROW COMPASS OF MATERIAL FACTS, WE ARE PROCEEDING TO DISPOSE 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 BROUGHT INTO EFFECT FROM 1ST JULY 2012. THIS STATUTORY PROVISION IS AS FOLLOWS: 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 SECTION 200 OR THE PROVISO TO SUBSECTION (3) OF SECTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A S UM 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 COLLECTI BLE, 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 DELIVERE D A STATEMENT IN ACCORDANCE WITH SUB-SECTION (3) OF SEC TION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 20 6C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR ITA NOS.401 & 402(ASR)/2015 ASST. YEAR : 2013-14 4 THE PROVISO TO SUB-SECTION (3) OF SECTION 206C WHIC H IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDU CTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER 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 DEDUCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SE CTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHAL L BE PROCESSED 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; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT O F AMOUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OTHERWISE BY WAY O F TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UND ER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHA LL 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 O F THE 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 ITA NOS.401 & 402(ASR)/2015 ASST. YEAR : 2013-14 5 STATEMENT' SHALL MEAN A CLAIM, ON THE BASIS OF AN E NTRY, IN THE STATEMENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTRY 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 UNDER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALIZED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE T AX 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-SECTI ON (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WITH EFFECT FROM THE 1ST DAY OF JUNE, 2 015, 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 O F THE AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGA INST ANY AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY O F TAX OR INTEREST OR FEE; (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UND ER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHA LL 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 SE CTION 200A IN RESPECT THEREOF, AN ADJUSTMENT COULD ALSO BE MADE I N RESPECT OF THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E. THERE IS NO DISPUTE THAT WHAT IS IMP UGNED IN APPEAL ITA NOS.401 & 402(ASR)/2015 ASST. YEAR : 2013-14 6 BEFORE US IS THE INTIMATION UNDER SECTION 200A OF T HE ACT, AS STATED IN SO MANY WORDS IN THE IMPUGNED INTIMATION ITSELF, AN D, AS THE LAW STOOD, PRIOR TO 1ST JUNE 2015, THERE WAS NO ENABLIN G PROVISION THEREIN FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEES UND ER SECTION 234E. WHILE EXAMINING THE CORRECTNESS OF THE INTIMATION U NDER SECTION 200A, WE HAVE TO BE GUIDED BY THE LIMITED MANDATE OF SECT ION 200A, WHICH, AT THE RELEVANT POINT OF TIME, PERMITTED COMPUTATIO N OF AMOUNT I.T.A. NO.90 /ASR/2015 ASSESSMENT YEAR 2013-14 PAGE 6 OF 7 RECOVERABLE FROM, 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 INF ORMATION 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 STA TEMENT. - SECTION 200A(1)(B) 9. NO OTHER ADJUSTMENTS IN THE AMOUNT REFUNDABL E TO, OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBL E IN ACCORDANCE 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 ORDE R UNDER SECTION 246A(A), AND, THEREFORE, THE CIT(A) OUGHT TO HAVE E XAMINED LEGALITY OF THE ADJUSTMENT MADE UNDER THIS INTIMATION IN THE LI GHT OF THE SCOPE OF THE SECTION 200A. LEARNED CIT(A) HAS NOT DONE SO. H E HAS JUSTIFIED THE LEVY OF FEES ON THE BASIS OF THE PROVISIONS OF SECT ION 234E. THAT IS NOT THE ISSUE HERE. THE ISSUE IS WHETHER SUCH A LEVY CO ULD BE EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A. THE AN SWER IS CLEARLY IN NEGATIVE. NO OTHER PROVISION ENABLING A DEMAND IN R ESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN ADMITT ED 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 STAT EMENT WAS FILED ON 19TH FEBRUARY 2014, SUCH A LEVY COULD ONLY HAVE BEE N MADE AT BEST WITHIN 31ST MARCH 2015. THAT TIME HAS ALREADY ELAPS ED AND THE DEFECT IS THUS NOT CURABLE 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 OF THE CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234 E IS UNSUSTAINABLE IN LAW. WE, THEREFOR E, UPHOLD THE ITA NOS.401 & 402(ASR)/2015 ASST. YEAR : 2013-14 7 GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED L EVY OF FEE UNDER SECTION 234E OF THE ACT. THE ASSESSEE GETS THE RELI EF ACCORDINGLY. WE FIND THAT THE APPEALS RELATE TO THE PERIOD BEFOR E 01.06.2015 AND THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF TH E TRIBUNAL DATED 09.06.2015 IN THE CASE OF SIBIA HEALTHCARE PRIVATE LI MITED (SUPRA), WE ALLOW THE APPEALS FILED BY THE ASSESSEE. 7. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.0 3.2017. SD/- SD/- (T. S. KAPOOR) (N. K. CHOUDHRY) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: 21.03.2017. /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