EMSONS EXIM PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER (TDS) 1(2)(3), MUMBAI

ITA 4406/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2301 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 14-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Difference of opinion; TDS
• Section: 234E; 200A; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHR I RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO. 4406 / MUM . /201 7 ( ASSESSMENT YEAR : 20 1 6 17 ) EMSONS EXIM PVT. LTD. 001, TURF ESTATE , SHAKTI MILLS LANE NEAR FAMOUS STUDIO , OFF. DR. E. MOSES ROAD , MUMBAI 400 011 PAN AABCE1643B . APPELLANT V/S INCOME TAX OFFICER (TDS) WARD 1(2)(3), MUMBAI . RESPONDENT ITA NO.4407/MUM./2017 ( ASSESSMENT YEAR : 201 5 1 6 ) EMSONS EXIM PVT. LTD. 001, TURF ESTATE, SHAKTI MILLS LANE NEAR FAMOUS STUDIO, OFF. DR. E. MOSES ROAD, MUMBAI 400 011 PAN AABCE1643B . APPELLANT V/S INCOME TAX OFFICER (TDS) WARD 1(2)(2), MUMBAI . RESPONDENT 2 EMSONS EXIM PVT. LTD. ITA NO.44 08 /MUM./2017 ( ASSESSMENT YEAR : 201 5 1 6 ) EMSONS EXIM PVT. LTD. 001, TURF ESTATE, SHAKTI MILLS LANE NEAR FAMOUS STUDIO, OFF. DR. E. MOSES ROAD, MUMBAI 400 011 PAN AABCE1643B . APPELLANT V/S INCOME TAX OFFICER (TDS) WARD 1(2)( 3 ), MUMBAI . RESPONDENT ITA NO.44 09 /MUM./2017 ( ASSESSMENT YEAR : 201 5 1 6 ) EMSONS EXIM PVT. LTD. 001, TURF ESTATE, SHAKTI MILLS LANE NEAR FAMOUS STUDIO, OFF. DR. E. MOSES ROAD, MUMBAI 400 011 PAN AABCE1643B . APPELLANT V/S INCOME TAX OFFICER (TDS) WARD 1(2)(3), MUMBAI . RESPONDENT ITA NO.44 10 /MUM./2017 ( ASSESSMENT YEAR : 201 5 1 6 ) EMSONS EXIM PVT. LTD. 001, TURF ESTATE, SHAKTI MILLS LANE NEAR FAMOUS STUDIO, OFF. DR. E. MOSES ROAD, MUMBAI 400 011 PAN AABCE1643B . APPELLANT V/S INCOME TAX OFFICER (TDS) WARD 1(2)(3), MUMBAI . RESPONDENT 3 EMSONS EXIM PVT. LTD. ITA NO.44 11 /MUM./2017 ( ASSESSMENT YEAR : 201 5 1 6 ) EMSONS EXIM PVT. LTD. 001, TURF ESTATE, SHAKTI MILLS LANE NEAR FAMOUS STUDIO, OFF. DR. E. MOSES ROAD, MUMBAI 400 011 PAN AABCE1643B . APPELLANT V/S INCOME TAX OFFICER (TDS) WARD 1(2)(3), MUMBAI . RESPONDENT ITA NO.44 12 /MUM./2017 ( ASSESSMENT YEAR : 201 5 1 6 ) EMSONS EXIM PVT. LTD. 001, TURF ESTATE, SHAKTI MILLS LANE NEAR FAMOUS STUDIO, OFF. DR. E. MOSES ROAD, MUMBAI 400 011 PAN AABCE1643B . APPELLANT V/S INCOME TAX OFFICER (TDS) WARD 1(2)(3), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI CHAITANYA ANJARIA DATE OF HEARING 23.08.2019 DATE OF ORDER 28.08.2019 O R D E R PER BENCH CAPTIONED APPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST COMMON ORDER DATED 27 TH MARCH 2017 , PASSED BY THE LEARNED COMMISSIONER OF 4 EMSONS EXIM PVT. LTD. INCOME TAX (APPEALS) 59, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 201 5 16 AND 2016 17 . 2 . THE COMMON GROUND OF CHALLENGE IN ALL THESE APPEA LS IS LEVY OF FEE UNDER SECTION 234E OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) WHILE PROCESSING THE TDS STATEMENT U /S 200A OF THE ACT. 3 . IT IS THE SAY OF THE ASSESSEE THAT THE PROVISION EMPOWERING LEVY OF FEE UNDER SECTION 234E OF THE ACT WAS INTRODUCED TO SECTION 200A OF THE ACT WITH INSERTION OF SUB CLAUSE (C) TO SUB SECTION (1) BY FINANCE ACT, 2015, W.E.F. 1 ST JUNE 2015. THEREFORE, IT WILL APPLY PROSPECTIVELY AND NOT TO THE TDS STATEM ENT S FOR ANY PERIOD PRIOR TO 1 ST JUNE 2015. WHILE DECIDING THE ISSUE, THERE WAS A DIFFERENCE OF OPINION BETWEEN THE MEMBERS CONSTITUTING THE BENCH. WHILE THE ACCOUNTANT MEMBER HELD THAT THE PROVISION OF SECTION 200A(1)(C) WILL APPLY RETROSPECTIVELY, THE JU DICIAL MEMBER HELD THAT LEVY OF FEE UNDER SECTION 200A(1)(C) WOULD APPLY PROSPECTIVELY TO ANY PERIOD FALLING AFTER 1 ST JUNE 2015. DUE TO DIFFERENCE IN OPINION BETWEEN THE MEMBERS CONSTITUTING THE BENCH, THE HONBLE PRESIDENT REFERRED THE I SSUE TO THE THIRD MEMBER, WHO FRAMED THE FOLLOWING QUESTION FOR DECIDING THE ISSUE : WHETHER THE FEES PRESCRIBED U/S 234E OF THE ACT CAN BE LEVIED WHILE PROCESSING RETURN U/S 200A OF THE ACT FOR ANY ASSESSMENT YEAR / PERIOD PRIOR TO 1 ST JUNE 2015 IN THE INSTANT CASES, WH EN THERE IS NO DECISION OF JURISDICTIONAL HIGH COURT AND WHEN THERE ARE TWO DIVERGENT VIEW S EXPRESSED BY TWO NON JURISDICTIONAL HIGH COURTS? 5 EMSONS EXIM PVT. LTD. 4 . WHILE DECIDING THE ISSUE, THE THIRD MEMBER AGREED WITH THE VIEW EXPRESSED BY THE JUDICIAL MEMBER AND HELD THAT FEE UNDER SECTION 234E OF THE ACT CAN ONLY BE CHARGED IN RESPECT OF DELAY IN FILING THE STATEMENT OF TDS FOR THE PERIOD AFTER 1 ST JUNE 2015. THUS, AS PER THE MAJORITY VIEW, APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, ASSESSEES APPEALS ARE AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN C OURT ON 28.08.2019 SD/ - RAMIT KOCHAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 28.08.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI