M/s. Ank Engineers, Indore V. ITO-TDS-I, Indore

ITA 444/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5047 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 08-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Keywords: TDS
• Section: 234E; 200A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.442 TO 444/IND/2019 M/S ANK ENGINEERS, 301, AKANSHA TRADE CENTRE, 156, KANCHAN BAGH ROAD, INDORE TAN: BPLA00911B ASSESSMENT YEAR 2013-14 (Q-2, Q-3 & Q-4) : APPELLANT V/S ITO (TDS)-I, INDORE : RESPONDENT APPELLANT BY SHRI VENUS RAWKA , CA RESPONDENT BY SHRI R.P. MOURYA , SR. DR DATE OF HEARING: 12.10.2020 DATE OF PRONOUNCEMENT: 13.10.2020 / O R D E R PER MANISH BORAD: THE ABOVE CAPTIONED 3 APPEALS ARE AT THE INSTANCE O F ASSESSEE AND IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIO NER OF INCOME TAX(APPEALS)-I, INDORE (IN SHORT CIT(A))DATED 31. 01.2019. ITANOS.442 TO 444/IND/2019 ANK ENGINEERS 2 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - ITA NO.442 TO 444/IND/2019 ASSESSMENT YEAR 2012-13 (QTR-2, QTR-3 & QTR-4) 1. THAT THE LEARNED CIT(A) ERRED IN LAW AND FACTS OF T HE CASE AND CONFIRMED THE LATE FEES LEVIED BY LD. A.O U/S 234E WITHOUT CO NSIDERING THE FULL FACTS AND REASONS OF THE CASE. 2. THAT THE SUB SECTION (3) OF THE SECTION 234E OF THE ACT STATES THAT IT SHALL BE AID BEFORE DELIVERING TDS STATEMENT. IT MEANS T HAT ANY LATE FEES SHOULD HAVE BEEN DEPOSITED JUST AT THE TIME OF DELIVERING TDS STATEMENT AND NOT LATE THAN THIS. 3. THAT ONCE THE TDS STATEMENT HAS BEEN ACCEPTED WITHO UT LATE FEES, THAN SUCH LATE FEES CANNOT BE RECOVERED LATER ON. IN VI EW OF THE ABOVE, LATE FEES CANNOT BE RECOVERED LATE ON BY WAY ON ANY NOTICE, N O NOTICE OF DEMAND US/ 146 CAN BE ISSUE FOR THIS. 4. FURTHER, THE SECTION UNDER WHICH ORDER HAS BEEN PAS SED I.E. 200(3) R.W.S. 234E OF THE INCOME TAX ACT, 1961 IN SUCH SECTION NO SUCH DEMAND ORDER CAN BE PASSED BY AOP. 5. THE LD. CIT(A) ERRED IN CHARGING LATE FEES U/S 234E BY STATEMENT ISSUED U/S 200A WHILE PROCESSING TDS STATEMENT SINCE THE E NABLING CLAUSE HAVE BEEN INSERTED W.E.F. 01.06.2015. 6. THAT THE APPELLANT CRAVES TO LEAVE, ADD, ALTER OR AMEND ANY GROUNDS AT OR BEFORE HEARING. 3. FROM PERUSAL OF THE GROUNDS FILED IN THE APPEALS WHICH HAVE BEEN ARGUED BY THE COUNSEL, ONLY ONE ISSUE NEEDS TO BE ADJUDICATED AS TO WHETHER THE REVENUE AUTHORITIES WERE JUSTIFIE D IN LEVYING THE ITANOS.442 TO 444/IND/2019 ANK ENGINEERS 3 LATE FEES U/S 234E OF THE ACT IN THE STATEMENT PROC ESSED U/S 200A OF THE ACT. 4. BRIEF FACTS COMMON TO THESE APPEALS ARE THAT TDS RETURN FOR QUARTER-2, QURTER-3 AND QUARTER-4 FOR FINANCIAL YEA R 2013-14 WERE FILED ON 02.04.2013, 10.08.2013 AND 03.07.2013 WERE PROCESSED BY CENTRAL PROCESSING CELL (IN SHORT CPC) ON 23.03.201 4 AFTER LEVYING FEE U/S 234E OF THE ACT AT RS.26,983/-, RS.24,207/- AND RS.9800/- RESPECTIVELY. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) BUT FAILED TO SUCCEED. NOW THE ASSESSEE IS IN APPE AL BEFORE THE TRIBUNAL. 5. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED A ND SUBMITTED THAT THE CASE OF ASSESSEE IS SQUARELY COV ERED ON THE DECISION OF HON'BLE I.T.A.T. BENCH, INDORE IN THE C ASE OF EXECUTIVE ENGINEER & OTHERS (SUPRA) ITA NO.457 TO 459/IND/2019 ORDER DATED 26.7.2019. 6. LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGUE D SUPPORTING ORDERS OF BOTH THE LOWER AUTHORITIES. 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND ALSO CAREFULLY GONE THROUGH TH E DECISIONS RELIED AND REFERRED BY LD. COUNSEL FOR THE ASSESSEE . SOLE ISSUE ITANOS.442 TO 444/IND/2019 ANK ENGINEERS 4 RAISED IN THIS TWO APPEALS IS AGAINST THE LEVY OF F EE U/S 234E OF THE ACT BY CPC FOR DELAY IN FILING THE TDS QUARTERLY RE TURNS AND LD. CIT(A) CONFIRMING SUCH LEVY OF FEE U/S 234E AT RS. 26,983/- RS.24,207/- AND RS. 9,800/- FOR QUARTER-2, QUARTER- 3 AND QUARTER-4 RESPECTIVELY FOR FINANCIAL YEAR 2013-14. QUARTERLY RETURNS WERE FILED AFTER THE DUE DATE. 8. WE OBSERVE THAT THE ISSUE OF LEVY OF FEE U/S 234 E HAS CAME BEFORE US ON VARIOUS OCCASIONS. AS REGARDS THE FATE OF FEES LEVIED U/S 234E OF THE ACT FOR THE RETURNS FILED AND PROCE SSED BEFORE 1.6.15 WE AFTER CONSIDERING THE JUDICIAL PRONOUNCEM ENTS HAVE TAKEN A CONSISTENT VIEW THAT THE AMENDMENT BROUGHT IN FIN ANCE ACT, 2015 W.E.F. 1.6.2015 UNDER SECTION 200A (CLAUSE (C)] OF THE ACT IS PROSPECTIVE IN NATURE THEREBY EMPOWERING THE REVENU E AUTHORITIES TO CHARGE FEE U/S 234E OF THE ACT ONLY AFTER 1.6.20 15. VARIOUS JUDGMENTS REFERRED AND RELIED BY LD. COUNSEL FOR TH E ASSESSEE ALSO LAYS DOWN COMMON RATIO THAT SINCE THE AMENDMENT BRO UGHT IN BY FINANCE ACT 2015 U/S 200A(C ) OF THE ACT W.E.F. 1.6 .2015 IS PROSPECTIVE IN NATURE, THEREFORE REVENUE AUTHORITI ES ARE NOT EMPOWERED TO LEVY THE FEES U/S 234E IN THE PROCESSI NG COMPLETED BEFORE 1.6.2015. ITANOS.442 TO 444/IND/2019 ANK ENGINEERS 5 9. IN THE INSTANT CASE THE DATE OF FILING THE QUART ERLY RETURN AND THEIR PROCESSING IS BEFORE 1.6.2015, SO IN THESE GI VEN FACTS WHETHER THE REVENUE AUTHORITIES WERE JUSTIFIED IN LEVYING F EE U/S 234E OF THE ACT?. WE FIND THAT SIMILAR ISSUE AND SAME FACTS CA ME UP FOR ADJUDICATION BEFORE US IN THE CASE OF EXECUTIVE ENGINEER & OTHERS ITA NO.457 TO 459/IND/2019 ORDER DATED 26.7.2019 WH EREIN WE DECIDED AS FOLLOWS (RELEVANT EXTRACT) :- 14. NOW COMING TO THE LAST CONTENTION AS WELL AS MA IN ISSUE THAT WHETHER IN ALL THE REMAINING CASES EXCEPT THAT OF ROHIT SINGH IN ITANO.422/IND/2019 WHETHER THE LD. CIT(A) WAS JUSTIFIED IN LEVYING THE FEE U/S 234E OF THE ACT. T HE COMMON FACT IN ALL THESE CASES ARE THAT THE DATE OF FILING TDS RETURN AS WELL AS DATE OF CPC ORDER IS AFTER 01.06.2015. W E OBSERVE THAT RECENTLY COORDINATE BENCH OF JAIPUR IN THE CASE OF SHRI UTTAM CHAND GANGWAL VS ACIT IN ITA NO . 764/JP/2017 DATED 23/01/2019 ADJUDICATED THE SIMILA R ISSUE OF LEVY OF FEE U/S 234E OF THE ACT IN THE TDS RETURN A ND THE CPC ORDER PASSED AFTER 01.06.2015. FOLLOWING DECISION WAS REN DERED BY THE COORDINATE BENCH: IN THE INSTANT CASE, THE ASSESSEE FILED ITS TDS RET URN IN FORM NO. 26Q FOR THE QUARTER ENDED 31ST MARCH, 2015 ON 22ND JULY , 2015 AND THE SAME WAS PROCESSED AND AN INTIMATION DATED 30 JULY, 2015 WAS ISSUED BY THE AO U/S 200 A OF THE ACT . THUS, BOTH THE FILING OF THE RETURN OF INCOME BY THE ASSESSEE AND PROCESSING THE REOF HAS HAPPENED MUCH AFTER 1.6.2015 I.E, THE DATE OF ASSUM PTION OF JURISDICTION BY THE AO U/S 200A(1)(C) TO LEVY FEES UNDER SECTION 234E OF THE ACT. EVEN THOUGH THE QUARTERLY RETURN PERTA INS TO QUARTER ENDED 31.3.2015, THE FACT REMAINS THAT THERE IS A C ONTINUING DEFAULT EVEN AFTER 1.6.2015 AND THE RETURN WAS ACTUALLY FIL ED ON 22.07.2015. ITANOS.442 TO 444/IND/2019 ANK ENGINEERS 6 THE SAID PROVISIONS CANNOT BE READ TO SAY THAT WHER E AN ASSESSEE FILE HIS RETURN OF INCOME FOR THE PERIOD FALLING AFTER 1 .6.2015 AND THERE IS A DELAY ON HIS PART TO FILE THE RETURN IN TIME, HE WI LL SUFFER THE LEVY OF FEES, HOWEVER, AN ASSESSEE WHO HAS DELAYED THE FILI NG OF THE RETURN OF INCOME EVEN PERTAINING TO THE PERIOD PRIOR TO 1.06. 2015, HE CAN BE ABSOLVED FROM SUCH LEVY EVEN THOUGH THERE IS A CONT INUOUS DEFAULT ITA NO. 764/JP/2017 SHRI UTTAM CHAND GANGWAL, AJMER VS. ACIT, GHAZIABAD ON HIS PART EVEN AFTER 1.6.2015. IN OUR V IEW, THE AO HAS ACQUIRED THE JURISDICTION TO LEVY THE FEES AS ON 1. 06.2015 AND THEREFORE, ANY RETURN FILED AND PROCESSED AFTER 1.6 .2015 WILL FALL WITHIN HIS JURISDICTION WHERE ON OCCURRENCE OF ANY DEFAULT ON PART OF THE ASSESSEE, HE CAN LEVY FEE SO MANDATED U/S 234E OF THE ACT. THEREFORE, IRRESPECTIVE OF THE PERIOD TO WHICH THE QUARTERLY RETURN PERTAINS, WHERE THE RETURN IS FILED AFTER 1.6.2015, THE AO CAN LEVY FEE UNDER SECTION 234E OF THE ACT. AT THE SAME TIME, IN TERMS OF DETERMINING THE PERIOD FOR WHICH FEES CAN BE LEVIED , ONLY SAVING COULD BE THAT FOR THE PERIOD OF DELAY FALLING PRIOR TO 1. 06.2015, THERE COULD NOT BE ANY LEVY OF FEES AS THE ASSUMPTION OF JURISD ICTION TO LEVY SUCH FEES HAVE BEEN HELD BY THE COURTS TO BE PROSPECTIVE IN NATURE. HOWEVER, WHERE THE DELAY CONTINUES BEYOND 1.06.2015 , THE AO IS WELL WITHIN HIS JURISDICTION TO LEVY FEES UNDER SECTION 234E FOR THE PERIOD STARTING 1.06.2015 TO THE DATE OF ACTUAL FIL ING OF THE TDS RETURN. IN LIGHT OF THE SAME, IN THE INSTANT CASE, THE LEVY OF FEES UNDER SECTION 234E IS UPHELD FOR THE PERIOD 1.06.2015 TO THE DATE OF ACTUAL FILING OF THE TDS RETURN WHICH IS 22.07.2015 AND THE BALANCE FEE SO LEVIED IS HEREBY DELETED. IN THE RESULT, THE GROUND OF APPEAL IS PARTLY ALLOWED. 15. FROM PERUSAL OF THE ABOVE DECISION WE FIND THAT THE ISSUE BEFORE US IS SIMILAR TO THE ISSUE ADJUDICATED BY THE COORDINATE BENCH AND WE ACCORDINGLY HOLD THAT THE L D. CIT(A) HAS RIGHTLY CONFIRMED THE LEVY OF FEE U/S 23 4E OF THE ACT BY THE CPC, HOWEVER WE DIRECT THE REVENUE AUTHO RITIES TO MAKE NECESSARY VERIFICATION IN EACH OF THE CASE SO AS TO LOOK INTO THE FACT THAT IN CASE IF ANY FEE U/S 234E IS LEVIED FOR THE DELAY IN FILING RETURN FOR THE PERIOD BEFOR E 01.06.2015, THE SAME IS DIRECTED TO BE DELETED AND THE REMAINING FEE LEVIED FOR THE DEFAULT COMMITTED FROM 01.06.2015 ONWARDS NEEDS TO BE CONFIRMED. ITANOS.442 TO 444/IND/2019 ANK ENGINEERS 7 10. IN LIGHT OF THE ABOVE DECISION WHICH SQUARELY A PPLIES ON THE INSTANT APPEALS SINCE THE ISSUE AND FACTS REMAIN TH E SAME, WE ARE THUS OF THE CONSIDERED VIEW THAT THE ASSESSEE IS EL IGIBLE FOR RELIEF FOR DELETION OF FEE LEVIED U/S 234E OF THE ACT AS THE R ETURNS ARE PROCESSED BEFORE 1.6.2015. 11. IN THE RESULT ALL THE 3 APPEALS OF THE ASSESSE E ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13.10.20 20. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 13/10/2020 /DEV COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE