Geetika Advani, Delhi V. DCIT, Delhi

ITA 4055/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2804 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2016-2017
• Appeal Filed On: 15-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; TDS
• Section: 234E; 200A; 201; 73

Judgement Text

ITA NO. 4055/DEL/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-4055/DEL/2016 ( ASSESSMENT YEAR: 2014-15) GEETIKA ADVANI BP-12, SHALIMAR BAGH, DELHI. ABLPS5000J VS DCIT TDS OFFICER, AAYAKAR BHAWAN, LAXMI NAGAR, DELHI. ASSESSEE BY SH. PRATAP GUPTA, CA REVENUE BY SH. ARUN KUMAR YADAV, SR.DR ORDER PER K. NARSIMHA CHARY, J.M. CHALLENGING THE ORDER DATED 24/07/2060 IN APPEAL NO . 347/14-15, PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-41 NEW DELHI (FOR SHORT HEREINAFTER REFER RED TO AS LD. CIT (A)), ASSESSEE PREFERRED THIS APPEAL ON THE FO LLOWING GROUNDS 1. THE LD. CIT (APPEALS) WITHOUT APPRECIATING THE F ACTS OF THE CASE IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING LEVY OF LATE FILING FEE OF RS. 39, 400/-U NDER SECTION 234E OF THE IT ACT. 2. THE ASSESSEE HAS EVERY RIGHT TO MAKE, ADD, DELETE , MODIFY OR ALTER ANY GROUND OF APPEAL AT THE TIME OF HEARING. 2. BRIEFLY STATED FACTS, INSOFAR AS THIS APPEAL IS CONCERNED, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DEDUCTED TDS OF RS. 57,474/- ON THE INTEREST PAYMENT OF RS. 1,86,000/-T O A NON- DATE OF HEARING 19.12.2017 DATE OF PRONOUNCEMENT 20.12.2017 ITA NO. 4055/DEL/2016 2 RESIDENT NAMELY MANOHAR ASSANDAS AS ON 21/10/2013, THAT TDS SO DEDUCTED WAS DEPOSITED TO THE CENTRAL GOVERNMENT ACCOUNT ON 21/10/2013, THAT THE TDS RETURN WHICH WAS DUE TO BE FILED ON OR BEFORE 15/01/2014 WAS FILED BY THE ASSESSEE ON 31/0 7/2014, THAT THE RETURN OF TDS SO FILED WAS ACCEPTED BY THE TIN FACILITATION CENTRE WITHOUT CHARGING ANY LATE FILIN G FEE UNDER SECTION 234 E OF THE ACT, BUT THEREAFTER THE DCIT C ENTRALISED PROCESSING CELL-TDS HAS LEVIED LATE FILING FEE OF R S. 39,400/-AS PER INTIMATION DATED 06/08/2014 UNDER SECTION 200 A OF THE ACT. APPEAL PREFERRED BY THE ASSESSEE WAS DISMISSED BY T HE LD. CIT BY WAY OF IMPUGNED ORDER. HENCE THE ASSESSEE IS BEFORE US IN THIS APPEAL. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE, SUB MITTED THAT ON IDENTICAL FACT, THE ISSUE UNDER HAND IS COVERED BY THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF GA JANAN CONSTRUCTIONS VS DCIT, CPC (TDS), (2016) 73 TAXMAN. COM 380 (PUNE TRIB.). LD. AR FURTHER SUBMITTED THAT THE DEC ISION OF THE PUNE BENCH WAS CONSIDERED BY A COORDINATE BENCH OF THIS TRIBUNAL IN M/S SAMIKARAN LEARNING PRIVATE LIMITED VS. TDS OFFICER, DELHI IN ITA NO. 4050 TO 4054/DEL/2016. PE R CONTRA, LD. CIT-DR, CONTENDED THAT THE LD. FIRST APPELLATE AUTH ORITY HAS ITA NO. 4055/DEL/2016 3 RELIED UPON THE DECISION IN THE CASE OF RASHMIKANT KUNDALIA VS UOI (2015) 54 TAXMAN.COM 200 (BOM.), LAXMINIRMAN BA NGALORE PVT. LTD. VS DCIT (2015) 60 TAXMAN.COM 144 (KARNATA KA) AND M/S DUNDLOD SHISHAN SANSTHAN VS UOI (2015) 63 TAXMA N.COM 243 (RAJ.), AS SUCH, SUCH AN ORDER CANNOT BE INTERF ERED WITH. HOWEVER, THE FACTUAL MATRIX HAS NOT BEEN IN DISPUT E. 4. A READING OF SECTION 200A OF THE ACT SHOWS THAT IT DEALS WITH PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE, WHEREAS, SECTION 234E OF THE ACT DEALS WITH FEE FOR DEFAULT IN FURNISHING STATEMENTS. ON A CAREFUL READING OF THE MATERIAL P APERS ON RECORD WE FOUND THAT THE FACTS INVOLVED IN THIS MAT TER ARE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF GAJANAN CONSTR UCTIONS VS DCIT (SUPRA) AND M/S SAMIKARAN LEARNING PRIVATE LIM ITED (SUPRA) WHEREIN ALSO THE ASSESSEE HAS CHALLENGED TH E POWER OF THE OFFICER TO CHARGE/COLLECT FEE AS PER THE PROVIS ION OF SECTION 234E, WHETHER VESTED PRIOR TO SUBSTITUTION OF CLAUS E (C) TO SECTION 200A OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01/ 06/2015 AND ENABLING PROVISION IN SECTION 200A FOR RAISING DEMA ND IN RESPECT OF LEVY OF FEE U/S 234E OF THE ACT. IN THE LATTER D ECISION A COORDINATE BENCH OF THIS TRIBUNAL THOROUGHLY CONSID ERED THE SCOPE OF SECTION 200 A OF THE ACT, IN THE LIGHT OF THE DECISION IN ITA NO. 4055/DEL/2016 4 GAJANAN CONSTRUCTIONS VS DCIT (SUPRA), AND FOUND TH AT PRIOR TO 01/06/2015, THERE WAS NO ENABLING PROVISION IN SECTION 200A FOR RAISING THE DEMAND IN RESPECT OF LEVY OF FEE U/S 23 4E OF THE ACT. IT WAS FURTHER OBSERVED THAT THE COORDINATE BENCH O F PUNE IN THE CASE OF GAJANAN CONSTRUCTIONS (SUPRA) HAS MADE AN E LABORATE DISCUSSION ON THE ISSUE AND DECIDED IN FAVOUR OF TH E ASSESSEE. IT IS ALSO NOTED THAT WHILE COMING TO A PARTICULAR CON CLUSION, THE PUNE BENCH OF THE TRIBUNAL DULY CONSIDERED THE DECI SIONS RELIED UPON BY THE LD. CIT-DR SUCH AS FROM HON'BLE BOMBAY HIGH COURT IN RASMIKANT KUNDALIA (IN PARA-6), HON'BLE KARNATAKA HIGH COURT IN LAXMI NIRMAN, BANGALO RE (P.) LTD. AND ALSO THE DECISION OF HON'BLE RAJASTHAN HIGH COURT I N DUNDLOD SHIKSHAN SANSTHAN VS UOI (SUPRA)(IN PARA-9 OF THE O RDER), IN ITS ORDER DATED 23/09/2016 ALONG WITH THE DECISION FROM HON'BLE APEX COURT IN THE CASE OF CIT VS VATIKA TOWNSHIP PVT. LTD . (2014) 367 ITR 466(SC) WHICH IS TO THE EFFECT OF GENERAL P RINCIPLE CONCERNING APPLICATION OF RETROSPECTIVELY OF THE AM ENDMENT, WHEREIN, IT WAS HELD THAT A LEGISLATION IS PRESUMED NOT TO BE INTENDED TO HAVE A RETROSPECTIVE OPERATION. IT IS A LSO NOTED THAT THE BENCH FOLLOWED THE DECISION IN THE CASE OF FATHERAJ SINGHVI VS UOI (2016) 73 TAXMAN.COM 252 (KERALA)(PARA-32) AND KASH REALTORS PVT. LTD. VS ITO (ITA NO.4199(MUM.) OF 201 5) DATED ITA NO. 4055/DEL/2016 5 27/07/2016(PARA-36). EVEN IF TWO VIEWS ARE POSSIBLE /AVAILABLE, AS PER THE DECISION FROM HON'BLE APEX COURT IN THE CASE OF VEGETABLE PRODUCTS (88 ITR 192)(SC), THE VIEW, WHIC H FAVORS THE ASSESSEE HAS TO BE FOLLOWED. THE ISSUE BEFORE THE H ON'BLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA (SUPR A) WAS WITH RESPECT TO CONSTITUTION VALIDITY OF THE SECTION INT RODUCED BY FINANCE ACT , 2015 W.E.F. 01/06/2015 BUT WAS NOT ABREAST OF THE APPLICABILITY OF SECTION 234E OF THE ACT BY THE AO WHILE PROCESSING TDS STATEMENT. SO FAR AS, THE HON'BLE KA RNATAKA HIGH COURT IS CONCERNED, IT WAS HELD THAT 'INTIMATION RA ISING DEMAND PRIOR TO 01/06/2015, U/S 200 A OF THE ACT , LEVYING FEE U/S 234E, IS NOT VALID'. IN THE LIGHT OF GAJANAN CONSTRUCTION S VS DCIT (SUPRA), IT WAS HOLD THAT AMENDMENT IN SECTION 200A(1) OF THE ACT IS PROCEDURAL IN NATURE, THEREFORE, THE AO WHILE PR OCESSING THE TDS STATEMENTS, RETURNS OF THE PERIOD PRIOR TO 01/0 6/2015, WAS NOT EMPOWERED TO CHARGE FEE U/S 234E OF THE ACT, HE NCE, THE INTIMATION ISSUED BY THE ASSESSING OFFICER U/S 200 A OF THE ACT , DOES NOT STAND, AS SUCH, THE DEMAND RAISED BY WAY O F CHARGING FEE U/S 234E OF THE ACT IS NOT VALID, RESULTANTLY, THE SAME HAS TO BE DELETED AS THE INTIMATION ISSUED BY THE ASSESSIN G OFFICER, FOR THE PERIOD PRIOR TO 01/06/2015, IS BEYOND THE SCOPE OF ADJUSTMENT PROVIDED U/S 200 A OF THE ACT . ITA NO. 4055/DEL/2016 6 5. SINCE THE FACTS AND THE QUESTION OF LAW INVOLVED IN ALL THESE DECISIONS ARE IDENTICALLY THE SAME, WHILE RESPECTFU LLY FOLLOWING THE DECISIONS IN GAJANAN CONSTRUCTIONS VS DCIT (SUP RA) AND M/S SAMIKARAN LEARNING PRIVATE LIMITED V S.L TDS OFFICE R, DELHI (SUPRA), WE ARE OF THE CONSIDERED OPINION THAT THE AMENDMENT IN SECTION 200 A (1) OF THE ACT IS PROCEDURAL IN NATU RE AND THE LD. AO WHILE PROCESSING THE TDS STATEMENTS, RETURNS OF THE PERIOD PRIOR TO 01/06/2015 WAS NOT EMPOWERED TO CHARGE LAT E FEE UNDER SECTION 234 E OF THE ACT, AS SUCH THE INTIMATION IS SUED BY THE ASSESSING OFFICER UNDER SECTION 200 A OF THE ACT DO ES NOT STAND AND THE DEMAND RAISED BY WAY OF CHARGING FEE UNDER SECTION 234 E OF THE ACT IS NOT VALID AND, ACCORDINGLY, IS LIAB LE TO BE DELETED. WE ACCORDINGLY ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 20.12.2017 SD/- SD/- (N.K. SAINI) (K. NARSIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED: 20.12.2017 *KAVITA ARORA ITA NO. 4055/DEL/2016 7 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI