Punjab National Bank, Bathinda V. The Dy. Commissioner of Income Tax (CPC), Ghaziabad

ITA 428/ASR/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9743 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 7 month(s) 11 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: 2015-2016
• Appeal Filed On: 10-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 234E; 200A; 201; 20

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. 428 TO 431(ASR)/2015 ASSESSMENT YEAR: 2015-16 TAN: - AMRP12603D PUNJAB NATIONAL BANK, VILL:-CHAK RULDU SINGH WALA, DISTT. BATHINDA. VS. DY. CIT, (CPC) TDS, GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY: WRITTEN SUBMISSIONS. RESPONDENT BY: SH. RAHUL DHAWAN. (DR) DATE OF HEARING: 15.02.2017 DATE OF PRONOUNCEMENT: 21.03.201 7 ORDER PER T. S. KAPOOR (AM): THESE ARE FOUR APPEALS FILED BY ASSESSEE AGAINST TH E SEPARATE ORDER OF LEARNED CIT(A), BATHINDA, ALL DATED 28.05.2015, FOR ASST. YEAR: 2015- 16. 2. THESE APPEALS WERE HEARD ALTOGETHER AND COMMON ISSUE IS INVOLVED THEREFORE, FOR THE SAKE OF CONVENIENCE, A COMMON AN D CONSOLIDATED ORDER IS BEING PASSED. 3. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE, HOWE VER THE ASSESSEE VIDE LETTER DATED 28.08.2016 HAD SUBMITTED THAT THE CASES OF THE ASSESSEE WERE 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. ITA NOS.428 TO 431(ASR)/2015 ASST. YEAR : 2015-16 2 YEAR: 2013-14. THE LETTER ALSO STATES THAT THE CASE S OF THE ASSESSEE BE DECIDED IN ACCORDANCE WITH THE CASE LAW OF SIBIA HE ALTHCARE PRIVATE LIMITED (SUPRA). THEREFORE, THE LD.DR WAS DIRECTED TO PROCEED WITH HIS ARGUMENTS. 4. THE LD. DR, HOWEVER, HEAVILY PLACED HIS RELIANCE ON THE ORDER OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE LD. DR AND HAVE GONE THROUGH T HE MATERIAL PLACED ON RECORD. WE FIND THAT THE APPEALS FILED BY ASSESSEE ARE DELAYED BY 10 DAYS, HOWEVER KEEPING IN VIEW THE SUBSTANTIAL JUSTICE, WE CONDONE THE DELAY. WE FIND THAT THE APPEALS RELATED TO ASST . YEAR: 2015-16 RELEVANT TO FINANCIAL YEAR 2014-15. THE HON'BLE TRI BUNAL OF AMRITSAR BENCH IN THE CASE OF SIBIA HEALTHCARE PRIVATE LIMIT ED VIDE ORDER DATED 09.06.2015 IN ITA NO.90(ASR)/2015 HAS HELD THAT THE PROVISIONS OF SECTION 234E WITH RESPECT TO LEVY OF FEE ARE NOT AP PLICABLE UP TO 01.06.2015 AS THERE WAS NO PROVISION FOR CHARGING O F FEE U/S 234E AND HAS FURTHER OBSERVED THAT THE PROVISIONS HAS BEEN A MENDED WITH EFFECT FROM 01.06.2015 AND THEREFORE THE FEE U/S 234E CAN BE LEVIED ONLY FROM 01.06.2015 ONLY. THE OPERATIVE PART OF THE ORDER OF TRIBUNAL 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) ITA NOS.428 TO 431(ASR)/2015 ASST. YEAR : 2015-16 3 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 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) ITA NOS.428 TO 431(ASR)/2015 ASST. YEAR : 2015-16 4 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; (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 SUB SECTION. ITA NOS.428 TO 431(ASR)/2015 ASST. YEAR : 2015-16 5 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, 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; (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) ITA NOS.428 TO 431(ASR)/2015 ASST. YEAR : 2015-16 6 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 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 BEFO RE 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. 7. IN NUTSHELL, THE APPEALS FILED BY THE ASSESSEE A RE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21. 03.2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21.03.2017 /GP/SR. PS. ITA NOS.428 TO 431(ASR)/2015 ASST. YEAR : 2015-16 7 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