MEPCO SCHLENK ENGINEERING COLLEGE COMMITTEE, SIVAKASI V. DCIT TDS CIRCLE, MADURAI

ITA 457/CHNY/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4222 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 08-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , . , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.457/CHNY/2018 / ASSESSMENT YEAR : 2013-14 M/S.MEPCO SCHLENK ENGINEERING COLLEGE COMMITTEE , MEPCO NAGAR, AMATHUR (VIA) SIVAKASI 626 005. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, TDS CIRCLE, MADURAI. [PAN AAATM 4053H] ( / APPELLANT) ( /RESPONDENT) ./ I.T.A.NO.458/CHNY/2018 / ASSESSMENT YEAR : 2013-14 SHRI VIJAYKUMAR SHARMA[HUF] , 369K,KAMAK NAGAR, RAILWAY FEEDER ROAD, SIVAKASI. 626 123 VS. THE INCOME TAX OFFICER, TDS CIRCLE, MADURAI. [PAN AAHHV 9980 R] ( / APPELLANT) ( /RESPONDENT) ./ I.T.A.NO.459/CHNY/2018 / ASSESSMENT YEAR : 2013-14 SHRI MANGILAL SHARMA[HUF] , 3/1356,1357,OPP. TO PRC BUS DEPOT, SATTUR ROAD, SIVAKASI 626 189. VS. THE INCOME TAX OFFICER, TDS CIRCLE, MADURAI. [PAN AAEHM 4307 G] ( / APPELLANT) ( /RESPONDENT) ITA NOS.457 TO 460/CHNY/18 :- 2 -: ./ I.T.A.NO.460/CHNY/2018 / ASSESSMENT YEAR : 2013-14 M/S.SHARMA TRANSPORT , 3/1356,137,OPP. TO PRC BUS DEPOT, SATTUR ROAD, SIVAKASI 626 005. VS. THE INCOME TAX OFFICER, TDS CIRCLE, MADURAI. [PAN ABCFS 1673 C] ( / APPELLANT) ( /RESPONDENT) ! ' # / APPELLANT BY : NONE $% ! ' # /RESPONDENT BY : MR.CLEMENT RAMESH KUMAR, ADDITIONAL CIT D.R. & ' ' () / DATE OF HEARING : 04 - 1 0 - 201 8 * ' () / DATE OF PRONOUNCEMENT : 08 - 1 0 - 201 8 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER ALL THE APPEALS ARE FILED BY DIFFERENT ASSESSEES . ITA NO.457/CHNY/2018 IS THE APPEAL DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-2(I/C), M ADURAI IN ITA NO.159/2016-17 DATED 28.11.2017, ITA NO.458/CHNY/2 018 IS THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER O F THE CIT(A)-2(I/C), MADURAI IN ITA NO.211/2016-17, ITA NO.459/CHNY/201 8 IS THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-2(I/C), MADURAI IN ITA NO.210/2016-17, AND ITA NO.460/CHNY/2018 IS THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) -2(I/C), MADURAI IN ITA NO.209/2016-17, ALL DATED 28.11.2017 FOR ASSESS MENT YEAR 2013- 14. ITA NOS.457 TO 460/CHNY/18 :- 3 -: 2. NONE REPRESENTED ON BEHALF OF THE ASSESSEE AN D MR.CLEMENT RAMESH KUMAR REPRESENTED ON BEHALF OF THE REVENUE. 3. AS ALL THESE FOUR APPEALS OF DIFFERENT ASSESSEES IN VOLVED IDENTICAL ISSUE, THE SAME IS DISPOSED OFF BY THIS C OMMON ORDER. 4. THE ASSESSEE HAD FILED WRITTEN SUBMISSIONS DATE D 06.08.2018 BEFORE THIS TRIBUNAL, WHEREIN ASSESSEE HAD SUBMITTE D THE FOLLOWING POINTS FOR OUR CONSIDERATION. WRITTEN SUBMISSION OF THE APPELLANT . OUR APPEAL IS REPOSTED FOR HEARING ON 03-10-2018. IN ADDITION TO THE GROUNDS OF APPEAL, YOUR APPELLAN T WISH TO SUBMIT THE FOLLOWING WRITTEN SUBMISSION. IT RELATES TO THE ASSESSMENT YEAR 2013-2014. THE ON LY ISSUE IN THIS APPEAL IS WHETHER THE ASSESSING AUTHORITY CAN LEVY FEE U/S. 2 34E WHILE PROCESSING THE STATEMENT U/S. 200A PRIOR TO 01-06-2015. 234E IS ONLY AN ENABLING PROVISION TO LEVY FEE FOR THE FAILURE TO FILE THE STATEMENT AS CONTEMPLATED U/S 200(3). NO ORDER CAN BE PASSED U/S 234E. BUT THE STATEMENT SHOULD BE PROCESSED U/S 200A(1)(C ). ACCORDING TO THE PROVISO NO INTIMATION CAN BE SENT U/S 200A AFTER TH E EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMEN T IS FILED. IN OUR CASE, THE STATEMENT IS FILED ON 28- 12-2012 AND 28-03-201 3. IT IS PROCESSED ON 16- ITA NOS.457 TO 460/CHNY/18 :- 4 -: 1-2014. THE REVISED ORDER IF ANY CAN BE PASSED ON O R BEFORE 31-3-2014 I.E., AFTER ONE YEAR FROM 31-3-2013. MOREOVER WE WISH TO BRING TO THE KIND NOTICE OF THI S HONOURABLE TRIBUNAL THE DECISION REPORTED IN 41 ITR (TRIB) PAGE 439 (CHENN I). HENCE IT IS PRAYED THAT WHILE DECIDING THIS APPEAL ON ITS MERITS THE DECISION REPORTED IN 41 ITR (TUB) PAGE 439 (CHENNAI) MAY KIN DLY BE TAKEN INTO CONSIDERATION. SIVAKAS I, 06-08-2018. APPELLANT . IT WAS A SUBMISSION THAT THE ASSESSEE HAS RELIED UP ON THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SMT. G.INDHIRANI VS.DCIT IN ITA NOS.1019 TO 1021/MDS./2015 DATED 10. 07.2015 WHEREIN IT HAS BEEN HELD THAT THE LD. ASSESSING OFF ICER HAS EXCEEDED HIS JURISDICTION IN LEVYING FEE U/S.234E OF THE ACT WHILE PROCESSING THE STATEMENT AND MAKING ADJUSTMENT U/S.200A OF THE AC T FOR ASSESSMENT YEAR 2013-14. IT WAS OPEN TO THE LD. ASSESSING OFFI CER TO PASS A SEPARATE ORDER U/S.234E OF THE ACT LEVYING FEE PROV IDED THE LIMITATION FOR SUCH A LEVY DID NOT EXPIRE. 5. ON THE OTHER HAND, LD.D.R PLACED BEFORE US COPY OF THE ORDER OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF RA JESH KOURANI VS. UNION OF INDIA DATED 20.06.2017 WHEREIN GUJARAT HIG H COURT HELD AS FOLLOWS:- ITA NOS.457 TO 460/CHNY/18 :- 5 -: 19. IN PLAIN TERMS, SECTION 200A OF THE ACT IS A M ACHINERY PROVISION PROVIDING MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION O F TAX AT SOURCE AND FOR MAKING ADJUSTMENTS, WHICH ARE, AS NOTED EARLIER, AR ITHMETICAL OR PRIMA-FACIE IN NATURE. WITH EFFECT FROM 01.06.2015, THIS PROVISION SPECIFICALLY PROVIDES FOR COMPUTING THE FEE PAYABLE U/S.234E OF THE ACT. ON THE OTHER HAND, SECTION 234E IS A CHARGING PROVISION CREATING A CHARGE FOR LEVYING FEE FOR CERTAIN DEFAULTS IN FILING THE STATEMENTS. UNDER NO CIRCUMS TANCES A MACHINERY PROVISION CAN OVERRIDE OR OVERRULE A CHARGING PROVI SION. WE ARE UNABLE TO SEE THAT SECTION 200A OF THE ACT CREATES ANY CHARGE IN ANY MANNER. IT ON)Y PROVIDES A MECHANISM FOR PROCESSING A STATEMENT FOR TAX DEDUCTION AND THE METHOD IN WHICH THE SAME WOULD BE DONE. WHEN SECTIO N 234E.HAS ALREADY CREATED CHARGE FOR LEVYING FEE THAT WOULD THEREAFTE R NOT BEEN NECESSARY TO HAVE YET ANOTHER PROVISION CREATING THE SAME CHARGE . VIEWING SECTION 200A AS CREATING A NEW CHARGE WOULD BRING ABOUT A DICHOTOMY . IN PLAIN TERMS, THE PROVISION IN OUR UNDERSTANDING IS A MACHINERY PROVI SION AND AT BEST PROVIDES FOR A MECHANISM FOR PROCESSING AND COMPUTING BESIDE S OTHER, FEE PAYABLE UNDER SECTION 234E FOR LATE FILING OF THE STATEMENT S. 20. EVEN IN ABSENCE OF SECTION 200A OF THE ACT WITH INTRODUCTION OF SECTION 234E, IT WAS ALWAYS OPEN FOR THE REVENUE TO DEMAND AND COLLECT THE FEE FOR LATE FILING OF THE STATEMENTS. SECTION 200A WOULD M ERELY REGULATE THE MANNER IN WHICH THE COMPUTATION OF SUCH FEE WOULD BE MADE AND DEMAND RAISED. IN OTHER WORDS, WE CANNOT SUBSCRIBE TO THE VIEW THAT W ITHOUT A REGULATORY PROVISION BEING FOUND FOR SECTION 200A FOR COMPUTAT ION OF FEE, THE FEE PRESCRIBED UNDER SECTION 234E CANNOT BE LEVIED. ANY SUCH VIEW WOULD AMOUNT TO A CHARGING SECTION YIELDING TO THE MACHINERY PRO VISION. IF AT ALL, RECASTED CLAUSE (C) OF SUB-SECTION (1) OF SECTION 200A WOULD BE IN NATURE OF CLARIFICATORY AMENDMENT. EVEN IN ABSENCE OF SUCH PR OVISION, AS NOTED, IT WAS ALWAYS OPEN FOR THE REVENUE TO CHARGE THE FEE IN TE RMS OF SECTION 234E OF THE ACT. BY AMENDMENT, THIS ADJUSTMENT WAS BROUGHT WITHIN THE FO1D OF SECTION 200A OF THE ACT THIS WOULD HAVE ONE DIRECT EFFECT. AN ORDER PASSED UNDER SECTION 200A OF THE ACT IS RECTIFIABLE UNDER SECTION 154 OF THE ACT AND IS ALSO APPEALABLE UNDER SECTION 246A. IN ABSENCE OF T HE POWER OF AUTHORITY TO MAKE SUCH ADJUSTMENT UNDER SECTION 200A OF THE ACT, ANY CALCULATION OF THE FEE WOULD NOT PARTAKE THE CHARACTER OF THE INTIMATI ON UNDER SAID PROVISION AND IT COULD BE ARGUED THAT SUCH AN ORDER WOULD NOT BE OPEN TO ANY RECTIFICATION OR APPEAL. UPON INTRODUCTION OF THE RECASTED CLAUSE (C), THIS SITUATION ALSO WOULD BE OBVIATED. EVEN PRIOR TO 01.06.2015, IT WA S ALWAYS OPEN FOR THE REVENUE TO CALCULATE FEE IN TERMS OF SECTION 234E O F THE ACT. THE KARNATAKA HIGH COURT IN CASE OF FATHERAJ SINGHVI [2016] (73 T AXMANN.COM 252) HELD THAT SECTION 200A WAS NOT MERELY A REGULATORY PROVISION, BUT WAS CONFERRING SUBSTANTIVE ON THE AUTHORITY. THE COURT WAS ALSO OF THE OPINION THAT SECTION 234E OF THE ACT WAS IN THE NATURE OF PRIVILEGE TO T HE DEFAULTER IF HE FAILS TO PAY FEES THEN HE WOU1D BE RID OF RIGOR OF THE PENAL PRO VISION OF SECTION 271H OF THE ACT WITH BOTH THESE PROPOSITIONS, WITH RESPECT, WE ARE UNABLE TO CONCUR. SECTION 200A. IS NOT A SOURCE OF SUBSTANTIVE POWER. SUBSTANTIVE POWER TO LEVY FEE CAN BE TRACED TO SECTION 234E OF THE ACT. FURTH ER THE FEE UNDER SECTION 234E OF THE ACT IS NOT IN LIEU OF THE PENALTY OF SE CTION 271H OF THE ACT. BOTH ARE INDEPENDENT LEVIES. SECTION 271H ONLY PROVIDES THAT SUCH PENALTY WOULD NOT BE LEVY IF CERTAIN CONDITIONS ARE FULFILLED. O NE OF THE CONDITIONS IS THAT THE TAX WITH FEE AND INTEREST IS PAID. THE ADDITIONAL C ONDITION BEING THAT THE STATEMENT IS FILED LATEST WITHIN ONE YEAR FROM THE DUE DATE. IT WAS A SUBMISSION THAT LEVY OF FEE U/S.234E WAS L IABLE TO BE UPHELD. ITA NOS.457 TO 460/CHNY/18 :- 6 -: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A P ERUSAL OF THE DECISION OF THE GUJARAT HIGH COURT IN THE CASE OF R AJESH KOURANI VS. UNION OF INDIA DATED 20.06.2017 REFERRED TO SUPRA C LEARLY SHOWS THAT THE HONBLE GUJARAT HIGH COURT WAS DECIDING THE ISS UE AS TO THE EFFECT OF THE AMENDMENT TO SECTION 234E WITH EFFECT FROM 0 1.06.2015. IT WAS NOT DEALING LEVY OF INTEREST U/S.234E OF THE ACT FO R THE PERIOD BEFORE THE AMENDMENT. HOWEVER, A PERUSAL OF THE DECISION O F THE CO-ORDINATE BENCH IN THE CASE OF SMT. G.INDHIRANI VS.DCIT REFER RED TO SUPRA CLEARLY SHOWS THAT THE ISSUE OF LEVY OF INTEREST U/S.234E O F THE ACT HAS NOT BEEN REJECTED, BUT IT HAS BEEN SAID THAT SUCH LEVY HAS BEEN MADE BY PASSING A SEPARATE ORDER PROVIDED THE LIMITATION FO R SUCH LEVY IS NOT EXPIRED. THIS IS IN RESPECT OF THE PERIOD PRIOR TO 01.06.2015. HERE WE MUST ALSO MENTION THAT THIS DECISION OF THE CO-ORDI NATE BENCH OF THIS TRIBUNAL IN THE CASE OF SMT. G.INDHIRANI VS.DCIT RE FERRED TO SUPRA HAS ALSO BEEN REITERATED AND FOLLOWED THE DECISION OF G .RADHAKRISHNAN IN ITA NO.526/CHNY.2018 DATED 30.07.2018. IN THE CIRCU MSTANCES, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SMT. G.INDHIRANI VS.DCIT REFERRED TO SUPRA AND SHRI G.RADHAKRISHNAN VS.DCIT REFERRED TO SUPRA, ON IDENT ICAL GROUNDS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE LD. ASSESSING OFFICER HAS EXCEEDED HIS JURISDICTION IN LEVYING THE FEE U/S.23 4E OF THE ACT WHILE PROCESSING THE STATEMENT AND MAKING ADJUSTMENTS U/S .200A OF THE ACT. ITA NOS.457 TO 460/CHNY/18 :- 7 -: THEREFORE, THE IMPUGNED INTIMATION OF THE LOWER AUT HORITIES LEVYING FEE U/S.234E OF THE ACT CANNOT BE SUSTAINED IN LAW. HOW EVER, IT IS MADE CLEAR THAT IT IS OPINION TO THE A.O TO PASS A SEPAR ATE ORDER U/S.234E OF THE ACT LEVYING FEE PROVIDED THE LIMITATION FOR SUC H A LEVY HAS NOT EXPIRED. ACCORDINGLY, THE INTIMATION U/S.200A AS CO NFIRMED BY THE CIT(A) IN SO FAR AS LEVY OF FEE U/S.234E IS SET ASI DE AND FEE LEVIED IS DELETED. 7. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEES ARE ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED ON OCTOBER, 2018, AT CHENNAI. ( . ) (A.MOHAN ALANKAMONY) ! ' / ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) # ' / JUDICIAL MEMBER - ' / CHENNAI . / DATED: OCTOBER, 2018. K S SUNDARAM / ' $(01 2 1( / COPY TO: 1 . ! / APPELLANT 3. & 3( () / CIT(A) 5. 145 $(6 / DR 2. $% ! / RESPONDENT 4. & 3( / CIT 6. 57 8' / GF