ESI Dispensary, Barabanki V. Income Tax Officer, Barabanki

ITA 443/LKW/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4034 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-08-2016
• Assessment Year: misc
• Appeal Filed On: 03-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. P . K. BANSAL , ACCOUNTANT MEMBER AND SHRI ABY T VARKEY , JUDICIAL MEMBER ITA NO. 443 & 444/LKW/2015 ASSESSMENT YEAR: 2013 - 14 E SI DISPENSARY DEWA ROAD BARABANKI V. DY. CIT (TDS) GHAZIABAD T AN /PAN : LKNEO5257A (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI AJAI SRIVASTAVA RESPONDENT BY: SHRI AMIT NIGAM, D.R. DATE OF HEARING: 09 08 2016 DATE OF PRONOUNCEMENT: 30 08 2016 PER ABY T VARKEY, J.M : O R D E R THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE ORDERS OF THE LD. CIT(A), LUCKNOW DATED 30.1.2015 FOR THE ASSESSMENT YEAR 2013 - 14. 2 . THE ONLY GRIEVANCE THAT HAS BEEN RAISED BEFORE US IN THIS APPEAL IS THAT THE LD. CIT(A) HAS UPHELD THE INTIMATION GIVEN BY THE ASSE SSING OFFICER UNDER SECTION 200A OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED IN SHORT 'THE ACT') WHEREIN HE HAS LEVIED FEE UNDER SECTION 234E OF THE ACT. ACCORDING TO THE ASSESSEE THE INTIMATION UNDER SECTION 200A OF THE ACT IS PER SE ILLEGAL BECAUS E THE LEVY OF FEE UNDER SECTION 234E OF THE ACT HAS BEEN INSERTED ONLY BY AN AMENDMENT MADE BY THE FINANCE ACT, 2015 W.E.F. 1.6.2015 IN THE ENABLING PROVISIONS OF SECTION 200A OF THE ACT. [ ITA NO.443 & 444/LKW/2015, A.Y. 2013 - 14 ] 2 3 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD. WE FIND THAT INTIMATION HAS BEEN GIVEN BY THE ASSESSING OFFICER UNDER SECTION 200A OF THE ACT WHEREIN LATE FILING FEE UNDER SECTION 234E OF THE ACT HAS BEEN LEVIED AGAINST THE ASSESSEE. WE TAKE NOTE THAT SECTION 234E OF THE ACT WHICH RELATES TO THE LEVY OF FEE FOR DE FAULT IN FURNISHING THE STATEMENT HAS BEEN INSERTED BY THE FINANCE ACT, 2012 W.E.F. 1.7.2012 AND THE AO IS EMPOWERED TO LEVY FEE FOR DEFAULT WHILE ASSESSING THE ASSESSEE DURING THE REGULAR ASSESSMENT PROCEEDINGS AS PER THIS PROVISION; WHEREAS THE GRIEVANCE OF THE ASSESSEE IS THAT IN THIS CASE THE INTIMATION ISSUED BY THE C.P.C (TDS) UNDER SECTION 200A OF THE ACT AND THE ASSESSEE HAS ASSAILED THE SAME BY POINTING OUT THAT THE POWER TO INCLUDE LATE FEE AS PER SECTION 234E OF THE ACT WAS NOT EXISTING IN SECTIO N 200A OF THE ACT, WHEN THE INTIMATION ORDER WAS PASSED AND WHICH WAS INSERTED IN SECTION 200A OF THE ACT W.E.F. 1.6.2015 AND SO THE IMPUGNED INTIMATION ON 8.8.2013 LEVYING THE LATE FEE UNDER SECTION 234E OF THE ACT IS PER SE ILLEGAL AND IS BAD IN THE EYES OF LAW. 4 . WE FIND THAT THE IMPUGNED INTIMATION UNDER SECTION 200A OF THE ACT HAS BEEN PASSED ON 8.8.2013 BY C.P.C. (TDS) . AS ON THAT DATE, IN THE ENABLING PROVISIONS OF SECTION 200A OF THE ACT, WE DO NOT FIND THE PROVISION RELATING TO LEVY OF LATE FEE AS P ER SECTION 234E OF THE ACT. WE ALSO TAKE NOTE THAT THE FOLLOWING HAS BEEN INSERTED BY THE FINANCE ACT, 2015 W.E.F. 1.6.2015: - (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: - (I) ANY ARITHMETICA L ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMATION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; [ ITA NO.443 & 444/LKW/2015, A.Y. 2013 - 14 ] 3 (C) THE FEE, IF ANY, SHALL BE COMPUTED IN AC CORDANCE 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 THE AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST ANY AMOUNT PAID UNDER SECTION 200 OR 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE. (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR. 5 . AS PER SECTION 200A OF THE ACT, THE HEAD READS AS PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE . A PERUSAL OF TH E SAID SECTION REVEALS THAT WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE OR CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM WHO IS DEDUCTOR UNDER SECTION 200 OF THE ACT, THE DEDUCTEES STATEMENT SHALL BE PROCESSED IN THE MANNER PRESCRIBED A S PER CLAUSES (A) TO (F) OF SECTION 200A OF THE ACT. 6 . THE MANNER PRESCRIBED FOR PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE HAS TO BE AS PER CLAUSE (A). CLAUSE (A) SPEAKS ABOUT THE SUMS DEDUCTIBLE UNDER THIS CHAPTER I.E. CHAPTER XVII. UNDER THIS CHAPTER, THE SUMS HAS TO BE COMPUTED AFTER MAKING ADJUSTMENTS IN RESPECT TO (1) ANY ARITHMETICAL ERROR IN THE STATEMENT OR (2) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMATION IN THE STATEMENT AND CLAUSE (B) STATES THAT INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT. 7 . WE TAKE NOTE THAT SUB - CLAUSE (C) HAS BEEN INTRODUCED BY THE FINANCE ACT, 2015 W.E.F. 1.6.2015 WHEREIN THE INTEREST, IF ANY, HAS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2 34E OF THE ACT AND SUB - CLAUSE (D) OF SECTION 200A OF THE ACT ALSO STATES THAT THE SUM [ ITA NO.443 & 444/LKW/2015, A.Y. 2013 - 14 ] 4 PAYABLE BY, OR ANY REFUND DUE TO THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF THE AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST ANY AMOUNT PAID UNDER S ECTION 200 OR 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE, AND CLAUSE (E) STATES THAT AN INTIMATION SHALL BE PREPARED OR GENERATED AND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND CLAUSE (F) STATES THAT THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR . 8 . FURTHER WE TAKE NOTE THAT THE PROVISO BARS ANY INTIMATION AS P ER THIS SUB - SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED. WE ALSO TAKE NOTE THAT BEFORE CLAUSES (C), (D), (E) AND (F) WAS SUBSTITUTED BY THE FINANCE ACT, 2015 W.E.F. 1.6.2015, CLAUSE S (C) TO (E) HAVE ORIGINALLY ENACTED READ AS UNDER: - (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMIATION SHALL BE PREPARED OR GENERATED AND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR. 9 . FROM A PERUSAL OF THE ABOVE CLAUSES, WHICH WERE IN EXISTENCE BEFORE 1.6.2015, WE TAKE NOTE THAT THERE WAS NO PROVISION FOR LEVYING OF FEE UNDER SECTIO N 234E OF THE ACT. THE LAW BEFORE 1.6.2015, WAS SPEAKING ABOUT TAX OR INTEREST AND NOT FEE. THEREFORE, WE FIND THAT THE PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE AS ENVISAGED IN [ ITA NO.443 & 444/LKW/2015, A.Y. 2013 - 14 ] 5 SECTION 200A OF THE ACT INCLUDES IN IT INTIMATION AS PER CLAUSE (E) OF SECTION 200A OF THE ACT AND READING OF CLAUSE (C) REVEALS THAT IF ANY INTEREST HAS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E OF THE ACT WHICH HAS BEEN SUBSTITUTED BY THE FINANCE ACT, 2015 W.E.F. 1.6.2015. THEREFORE, THE INTIMATIO N ISSUED UNDER SECTION 200A OF THE ACT PRIOR TO 1.6.2015 CANNOT BRING IN ITS FOLD, FEE LEVIABLE UNDER SECTION 234E OF THE ACT AND, THEREFORE, THE IMPUGNED INTIMATION UNDER SECTION 200A OF THE ACT IS NOT IN ACCORDANCE WITH LAW AND, THEREFORE, WE SET ASIDE T HE ORDER OF THE LD. CIT(A) AND DELETE THE ADDITION MADE UNDER SECTION 234E OF THE ACT IN THE IMPUGNED INTIMATION UNDER SECTION 200A OF THE ACT. 10 . IN THE RESULT, APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.8.2016. SD/ - SD/ - [P. K. BANSAL ] [ ABY T VARKEY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH 1 . APPELLANT AUGUST , 2016 JJ: 1708 COPY FORWARDED TO: 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR