Astley Construction, Dehradun V. ITO (TDS), Dehradun

ITA 46/DDN/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0527 (ITAT-DEHRADUN)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 12-06-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N C UPADHYAYA
• Assessee Lawyers: SUDHIR MATTA
• Keywords: Principle of natural justice; Condonation of delay; TDS
• Section: 234E; 200A; 201

Judgement Text

1 ITA NO.46 & 47/DDN/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DEHRADUN CIRCUIT BENCH: DEHRADUN BEFORE MS SUCHITRA KAMBLE, JUDICIAL ME MBER AND DR. B. R. R. KUMAR, ACCOUNT ANT MEMBER ITA NO. 46/DDN/20 19 ( A.Y 2013-14) & ITA NO. 47/DDN/20 19 ( A.Y 2014-15) (THROUGH VIDEO C ONFERENCING) ASTLEY CONSTRUCTION C/O. MATTA GARG & CO. CAS, 15-ASTLEY HALL, DEHRADUN UTTARAKHAND AAVFA1134E (APPELLANT) VS ITO (TDS) DEHRADUN, UTTARAKHAND (RESPONDENT) APPELLANT BY SH. SUDHIR MATTA, CA RESPONDENT BY SH. N. C. UPADHYAYA, SR. DR ORDER PER SUCHITRA KAMBLE, JM THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER DATED 16/05/2019 & 17/05/2019 PASSED BY CIT(A)-DEHRADUN F OR ASSESSMENT YEAR 2013-14 & 2014-15 RESPECTIVELY. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- ITA NO. 46/DDN/2019 1. THE LD.CIT(A) DEHRADUN HAS ERRED IN DISMISSING THE APPEAL IN LIMINE WITHOUT CONSIDERING THE GROUNDS OF APPEALS ON MERIT S. 2. THE LD. ASSESSING OFFICER HAS ERRED IN IMPASSI NG LATE FILING FEES OF RS. 71,212/- U/S 201 (1A) OF THE INCOME TAX ACT, 1961. DATE OF HEARING 19.02.2021 DATE OF PRONOUNCEMENT 15.03.2021 2 ITA NO.46 & 47/DDN/2019 3. THE ORDER PASSED IS ARBITRARY, AGAINST THE PROV ISIONS OF LAW AND FACTS OF THE CASE. 4. ANY OTHER GROUND ARISING AT THE TIME OF OR BEFOR E HEARING OF APPEAL. ITA NO. 47/DDN/2019 1. THE LD.CIT(A) DEHRADUN HAS ERRED IN DISMISSING THE APPEAL IN LIMINE WITHOUT CONSIDERING THE GROUNDS OF APPEALS ON MERIT S. 2. THE LD. ASSESSING OFFICER HAS ERRED IN IMPASSI NG LATE FILING FEES OF RS. 34,733/- U/S 201 (1A) OF THE INCOME TAX ACT, 1961. 3. THE ORDER PASSED IS ARBITRARY, AGAINST THE PROV ISIONS OF LAW AND FACTS OF THE CASE. 4. ANY OTHER GROUND ARISING AT THE TIME OF OR BEFOR E HEARING OF APPEAL. 3. THE RETURN OF TDS WERE FILED LATE AS PARTNER LOO KING AFTER THE TAX MATTER WAS NOT ATTENDING BUSINESS DUE TO ILL HEALTH AS PER THE SUBMISSIONS MADE BY THE ASSESSEE VIDE LETTER DATED NIL AND RECEIVED O N 15/1/2021 BY THE REGISTRY OF THE TRIBUNAL. THE SAME IS TAKEN ON RECORD. THE LATE FILING FEES OF RS. 11,212/- FOR ASSESSMENT YEAR 2013-14 AND RS. 34,773 /- FOR ASSESSMENT YEAR 2014-15 WAS CHARGED U/S 234E WHILE PASSING THE OR DER U/S 201(1A) OF THE INCOME TAX ACT, 1961. 4. THE LD. AR SUBMITTED THAT THE ORDER PASSED U/S 2 01(1A) ELECTRONICALLY WAS NEVER SERVED UPON THE ASSESSEE. THE CIT(A) HAS SUO MOTU REJECTED THE APPEALS ON SOLE GROUND OF LATE FILING OF APPEAL BY THE ASSESSEE THOUGH IT WAS CATEGORICALLY CONSTITUTED BEFORE HIM THAT ORDERS PA SSED U/S 201(1A) WERE NEVER SERVED UPON THE ASSESSEE. IT WAS ONLY ON RECEIPT O F NOTICE OF DEMAND OF TAX THE ASSESSEE CAME TO KNOW ABOUT THE ORDERS U/S 201(1A) OF THE ACT. THE LD. AR FURTHER SUBMITTED THAT THERE IS NO INHERENT POWER V ESTED WITH THE ASSESSING OFFICER TO PROCESS TDS RETURNS U/S 200A AND TO LEVY TDS LATE F EES U/S 234E UPTO 31.05.2015. THE AMENDMENT IN SECTION 201(1A) CAME W .E.F. 1.6.2015 GIVING POWERS TO LEVY THE FEES FOR LATE FILING OF T DS RETURNS WHILE DOING 3 ITA NO.46 & 47/DDN/2019 PROCESSING U/S 201(1A) AND THE RETURNS SUBMITTED/PR OCESSED PRIOR TO THIS DATE WERE NOT SUBJECT TO IMPOSITION OF LATE FILING FEES. SUCH POWERS WERE NOT VESTED TILL THE AMENDMENT MADE ON 1.6.2015. RELIANCE IS P LACED ON FOLLOWING CASES WHEREIN IT HAS BEEN HELD THAT CHARGING OF LATE FILING FEES U/S 234E OF THE INCOME TAX ACT, 1961 IN THE ORDER PASSED U/S 201(1A) IS INVALID AND IS UNCALLED FOR. SIBIA HEALTHCARE (P) LTD. IS DCIT(TDS) I.T.A. NO.90 /ASR/2015 DATED 9.6.2015. DHANLAXMI DEVELOPERS VS. DCIT ITA NO.2888 TO 2891/AHMD/2015. TANISH INDUSTRIES (P) LTD. VS. DCIT- ITANO.2296/AHD ./2015 PERFECT CROPSCIENCE PVT. LTD VS. DCIT, ITA NO. 2963 /AHD/2015 THE ADJUSTMENT IN RESPECT OF LEVY OF FEES U/S 234E IS I NDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED U/S 2 01(1)A. IN THE ABSENCE OF THE ENABLING PROVISIONS U/S 201(1A) NO LEVY OF LATE FILING FEES CAN BE EFFECTED. THE INTIMATION U/S 201(1A) RAISING A DEMAND OR DI RECTING A REFUND TO THE TAX DEDUCTOR CAN ONLY BE PASSED WITHIN ONE YEAR FROM EN D OF THE FINANCIAL YEAR WITHIN WHICH THE RELATED TDS STATEMENT IS FILED. TH E ORDER PASSED U/S 201(A IS VOID AB INITIO AS THE ASSESSING ORDER DID NOT HAVE POWERS TO PROCESS TDS RETURNS U/S 200A TO LEVY LATE FEES U/S 234E. THESE POWERS CAME INTO LAW W.E.F. 31.05.2015. BOTH THE APPEALS ARE IN RESPECT OF THE YEARS PRIOR TO 31.05.2015. THUS BOTH THE ORDERS ARE VOID AB INITIO AS DEVOID O F POWERS TO PASS ORDER. 5. THE LD. DR RELIED UPON THE ORDER PASSED U/S 201( 1A) BY THE ASSESSING OFFICER, CPC, TDS, GHAZIABAD AND ORDER OF THE CIT(A ). 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE CIT(A) HAS DISMISSED THE APPEALS IN LIMINE AND HAS NOT DISCUSSED THE ISSUES ON MERIT. THEREFORE, IT WILL BE APPROPRIATE TO REMAND BACK BOTH THE MATTERS TO THE FILE OF THE CIT(A) FOR PROPER ADJUDICATION AFTER CONDONING THE DELAY IN FILING THE APPEALS. NEEDLES S TO SAY, THE ASSESSEE BE 4 ITA NO.46 & 47/DDN/2019 GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLE S OF NATURAL JUSTICE. 7. IN RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF MARCH, 2021. SD/- SD/- (B. R. R. KUMAR) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 15/03/2021 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI