KAMALA ENTERPRISES, MUMBAI V. ITO TDS 1(3)(2), MUMBAI

ITA 4087/MUM/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0527 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 01-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 4087 /MUM/ 2015 ASSESSMENT YEAR: 2014 - 15 KAMALA ENTERPRISES GROUND FLOOR, COSMOS, PLOT NO. 399, NEAR GOLDEN TOBACCO, S V ROAD, VILE PARLE (W) MUMBAI - 400056 VS. ITO(TDS) - 1(3)(2), K.G. MITTAL BLDG., CHARNI ROAD, MUMBAI - 400002. PAN NO. AAHFK8972G APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MR. V. JUSTIN , DR DATE OF HEARING : 29/01/2018 DATE OF PRONOUNCEMENT : 30/01/2018 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2014 - 15 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 5 9, MUMBAI AND ARISES OUT OF THE ORDER PASSED BY THE ASSESSING OFFICER (AO) U/S 200A OF THE INCOME TAX ACT 1961, (THE ACT). THOUGH THE CASE WAS FIXED FOR HEARING ON 09.03.2017, 01.09.2017, 29.09.2017 AND 29.01.2018, NEITHER THE ASSESSEE NOR ITS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE TRIBUNAL ON THE ABOVE DATES. KAMALA ENTERPRISES ITA NO. 4087/MUM/2015 2 2. THE GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT (I) THE POWER TO CHARGE FEES U/S 234E IN THE INTIMATION PROCESSED U/S 200A IS GIVEN TO THE AO BY THE AMENDMENT OF CLAUSE (C) OF SECTION 200A(1) W.E.F. 1 ST JUNE 2015, (II) AS PER SUBSECTION 3 OF SECTION 234E, THE FEE IS REQUIRED TO BE PAID BEFORE DELIVERING THE STATEMENT OF TDS; ONCE THAT OPPORTUNITY IS MISSED, THE AO DID NOT HAVE POWER TO IMPOSE FEES U/S 234E IN THE INTIMATION U/S 200A, UNTIL 31 ST MAY 2015. THUS IT IS STATED THAT THE LD. CIT(A) ERRED IN CONFIRMING LEVY OF FEES OF RS.12,600/ - U/S 234E IN THE INTIMATION PASSED U/S 200 A BY THE AO. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE AO HAS COMPUTED THE LATE FILING FEES OF RS.12,600/ - U/S 234E AS UNDER: SL NO. TYPE OF DEFAULT DEFAULT AMOUNT (RS.) AMOUNT REPORTED AS INTEREST/OTHERS CLAIMED IN THE STATEMENT (RS.) PAYA BLE (RS.) 1. SHORT PAYMENT 0.00 0.00 0.00 2, SHORT DEDUCTION/COLLECTION 0.00 0.00 0.00 3. INTEREST ON PAYMENTS DEFAULT U/S 201(1A)/206C(7) 3(A) INTEREST ON SHORT PAYMENT 0.00 0.00 0.00 3(B) INTEREST ON LATE PAYMENT 15,664.50 0.00 15,664.50 4. INTEREST ON DEDUCTION/COLLECTION DEFAULT U/S 201(1A)/206C(7) 4(A) INTEREST ON SHORT DEDUCTION/COLLECTION 0.00 0.00 0.00 4(B) INTEREST ON THE LATE DEDUCTION/COLLECTION 0.00 0.00 0.00 5. LATE FILING FEE U/S 234E 12,600.00 0.00 12,600.00 PAYABLE (RS.) 28,264.50 KAMALA ENTERPRISES ITA NO. 4087/MUM/2015 3 ROUNDING OFF (TO THE NEAREST MULTIPLE OF TEN RUPEES) (RS.) - 4.50 NET PAYABLE (RS.) 28,260.00 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). WE FIND THAT THE LD. CIT(A) RELYING ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA V. UNION OF INDIA DATED 09.02.2015 UPHELD THE LEVY OF LATE FILING FEES OF RS.12,600/ - COMPUTED BY THE AO U/S 234E OF THE ACT. 5. AS MENTIONED HEREINBEFORE, NEITHER THE ASSESSEE NOR ITS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE TRIBUNAL ON THE DATES FIXED FOR HEARING. 6. THE LD. DR RELIES ON THE ORDER PASSED BY THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA (SUPRA) AND SUPPORTS THE ORDER PASSED BY THE LD. CIT(A). 7. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE LD. CIT(A) RELYING ON THE ABOVE DECISION OF THE HONBLE BOMBAY HIGH COURT HAS RIGHTLY CONCLUDED THAT THE ARGUMENT OF THE APPELLANT THAT AO IS NOT EMPOWERED TO COLLECT F EE U/S 234E CANNOT COME TO ITS RESCUE. THE JURISDICTIONAL HIGH COURT IN DECISION CITED SUPRA HAS STATED THAT A PERSON DEDUCTING THE TAX (THE DEDUCT OR ), IS ALLOWED TO FILE HIS TDS STATEMENT BEYOND THE PRESCRIBED TIME PROVIDED HE PAYS THE FEE AS PRESCRIBED U /S 234E OF THE ACT. IN OTHER WORDS, THE LATE FILING OF THE TDS RETURN/STATEMENTS IS REGULARIZED UPON PAYMENT OF THE FEE AS SET OUT IN SECTION 234E. THEREFORE, THE APPELLANT WHO HAS FILED STATEMENT HAS T O PAY THE FEES LEVIED U/S 234E. KAMALA ENTERPRISES ITA NO. 4087/MUM/2015 4 7.1 THUS WE UPHOLD T HE ORDER OF THE LD. CIT(A) AS IT IS BASED ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA (SUPRA). 8. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/01/2018. SD/ - SD/ - (D.T. GARASIA ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 30/01/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI