M/S. VIMIT METALS AND INFRASTRUCTURE P. LIT., JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, CPC, TDS, GHAZIABAD

ITA 41/JPR/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0943 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 12-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Assessee Lawyers: K L MOOLCHANDAN I
• Keywords: Principle of natural justice

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE -A, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 41 & 42/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2015-16 M/S VIMIT METALS AND INFRASTRUCTURE PRIVATE LIMITED, C-61, AMBABARI, JHOTWARA ROAD, JAIPUR CUKE VS. THE DCIT, CENTRALISED PROCESSING CELL- TDS, GHAZIABAD LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: JPRV03442F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI K. L. MOOLCHANDANI JKTLO DH VKSJ LS @ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 13/11/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT :26/11/2018 VKNS'K@ ORDER PER BENCH: THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAINS T THE RESPECTIVE ORDERS OF THE LD. CIT(A)-3, JAIPUR DATED 20.11.2017. 2. IN ITA NO. 41/JP/2018, THE ASSESSEE HAS CHALLENGED THE SUSTENANCE OF LATE FILING FEES OF RS. 21,800/- CHAR GED BY THE ASSESSING OFFICER U/S 234E WHILE PROCESSING THE TDS RETURN (2 4Q) U/S 200A OF THE ACT FOR THE F. Y 2014-15 (QTR. 3). IN ITA NO. 42/ JP/2018, THE ASSESSEE HAS CHALLENGED THE SUSTENANCE OF LATE FILING FEES O F RS. 10,050/- ITA NO. 41 & 42/JP/2018 M/S VIMIT METALS AND INFRASTRUCTURE PRIVATE LTD., J AIPUR VS. DCIT, GHAZIABAD 2 CHARGED BY AO U/S 234E WHILE PROCESSING THE TDS RET URN (26Q) U/S 200A OF THE ACT FOR THE F. Y 2014-15 (QTR. 3). 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE APPELLANT HAD RECEIVED TWO COMPUTER GENERATED INTI MATIONS U/S 200A OF THE ACT DATED 11 TH MAY, 2015, CHARGING THEREIN LATE FILING FEE OF RS.21,800/- & RS.10,050/- RESPECTIVELY U/S 2 34E OF THE ACT. IT WAS SUBMITTED THAT THE FEE HAD BEEN CHARGED IN A ME CHANICAL MANNER WITHOUT APPLICATION OF MIND AND ALSO WITHOUT FOLLOWING THE PROPER COURSE OF NATURAL JUSTICE AND EQUITY. FURTH ER, IT WAS SUBMITTED THAT THE FEE SO CHARGED U/S 234E OF THE A CT IS ALSO NOT LEGALLY MAINTAINABLE FOR THE REASON THAT THE LD. AO WAS NOT EMPOWERED FOR MAKING ADJUSTMENT IN RESPECT OF STATE MENT FILED BY THE APPELLANT WITH REGARD TO TAX DEDUCTED AT SOURCE BY LEVYING FEE U/S 234E OF THE ACT AT THE GIVEN POINT OF TIME. THE ENABLING PROVISIONS OF LAW I.E. SUB-SECTION (1) OF CLAUSES ( C) TO (E) OF THIS SECTION WERE INSERTED BY THE FINANCE ACT, 2015 I.E. W.E.F. 1.6.2015 ONLY ENABLING THE LD. AO TO MAKE ADJUSTMENT BY LEVY ING FEE U/S 234E OF THE ACT. PRIOR TO 1.6.2015, THE AO WAS NOT AUTHORIZED TO MAKE ANY ADJUSTMENT BY LEVYING FEE U/S 234E WHILE P ROCESSING STATEMENT OF TAX DEDUCTED AT SOURCE U/S 200A. THUS THE FEE SO CHARGED WAS BAD IN LAW AND DESERVED TO BE DELETED S UMMARILY ON THIS GROUND AS WELL. IT WAS FURTHER SUBMITTED THAT THE POINT AT ISSUE HAD COME UP FOR INTERPRETATION AT LENGTH BEFORE NUM BER OF JUDICIAL AUTHORITIES SETTING AT REST THE CONTROVERSY. IN SUP PORT, RELIANCE WAS PLACED ON THE DECISION IN CASE OF TRIMURTY BUILCON P LTD VS DCIT (ITA NO. 18, 19 & 20/JP/2017 DATED 29.10.2018). ITA NO. 41 & 42/JP/2018 M/S VIMIT METALS AND INFRASTRUCTURE PRIVATE LTD., J AIPUR VS. DCIT, GHAZIABAD 3 4. IN ITA NO. 18, 19 & 20/JP/2017 DATED 29.10.2018 IN CASE OF TRIMURTY BUILDCON P. LTD., JAIPUR VS DCIT, GHAZIABA D, WE HAVE RECENTLY DEALT WITH AN IDENTICAL ISSUE AND OUR FINDINGS ARE REPRODUCED AS UNDER:- 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, THE UNDIS PUTED FACTS ARE THAT THE ASSESSEE FILED ITS TDS RETURN (FORM 26Q) FOR TH E FOURTH QUARTER OF FINANCIAL YEAR 2012-13 ON 1.10.2013 AND THE SAME WA S PROCESSED AND INTIMATION UNDER SECTION 200A WAS ISSUED VIDE ORDER DATED 25.12.2013 MUCH PRIOR TO THE AMENDMENT TO SECTION 200A OF THE ACT W.E.F. 1.6.2015 EMPOWERING THE ASSESSING OFFICER LEVYING T HE FEES UNDER SECTION 234E OF THE ACT. IT IS THEREFORE NOT A CAS E OF CONTINUING DEFAULT WHERE THE ASSESSEE HAS DEFAULTED IN FURNISHING THE TDS STATEMENT EVEN AFTER 1.6.2015 AND THEREAFTER, THE DEMAND FOR PAYME NT OF FEES UNDER SECTION 234E HAS BEEN RAISED BY THE ASSESSING OFFIC ER. IN CASE OF FATHERAJ SINGHVI (SUPRA), THE HONBLE KARNATAKA HIG H COURT HAS HELD THAT THE PROVISIONS OF AMENDED SECTION 200A ARE PRO SPECTIVE IN NATURE. FURTHER, THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND OTHERS (SUPRA) A S RELIED BY LD. CIT (A) IS IN THE CONTEXT OF VALIDITY OF SECTION 234E, BUT NOT IN THE CONTEXT OF POWER OF AO FOR LEVY OF FEE UNDER SECTION 234E PRIO R TO 1.6.2015. IN VIEW OF THE ABOVE, THE ASSESSING OFFICER WHILE PROC ESSING THE TDS STATEMENTS FOR THE PERIOD PRIOR TO 01.06.2015, WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, T HE DEMAND RAISED BY WAY OF CHARGING THE FEES UNDER SECTION 234E OF T HE ACT IS NOT VALID AND THE SAME IS DELETED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, THE ASSES SEE FILED ITS TDS ITA NO. 41 & 42/JP/2018 M/S VIMIT METALS AND INFRASTRUCTURE PRIVATE LTD., J AIPUR VS. DCIT, GHAZIABAD 4 RETURNS (FORM 24Q & FORM 26Q) FOR THE THIRD QUARTER OF FINANCIAL YEAR 2014-15 WHICH WAS PROCESSED AND INTIMATION UNDER SE CTION 200A WAS ISSUED VIDE RESPECTIVE INTIMATIONS ISSUED UNDER SEC TION 200A DATED 11.05.2015 MUCH PRIOR TO THE AMENDMENT TO SECTION 2 00A OF THE ACT W.E.F. 01.6.2015 EMPOWERING THE ASSESSING OFFICER L EVYING THE FEES UNDER SECTION 234E OF THE ACT. FOLLOWING OUR DECIS ION REFERRED SUPRA, WE HEREBY DIRECT THE DEMAND RAISED BY WAY OF CHARGI NG THE FEES UNDER SECTION 234E OF THE ACT IN BOTH THE CASES TO BE DEL ETED. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AR E ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/11/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26/11/2018 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S VIMIT METALS AND INFRASTRUCTURE PRIVATE LTD., JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CENTRALIZED PROCESSING CELL- TDS, GHAZIABAD 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 41 & 42/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR