AVNC High School, Visakhapatnam V. The Deputy Commissioner of Income Tax, Central Processing Cell, TDS, Ghaziabad

ITA 460/VIZ/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3992 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 10-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SUMAN MALIK
• Keywords: Charitable institution; Retrospective amendment; TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO S . 459 & 460 / VIZ /201 8 (ASST. YEAR : 20 13 - 14 & 20 14 - 1 5 ) MRS. A.V.N.C. HIGH SCHOOL, A.V.N.C. HIGH SCHOOL , VISAKHAPATNAM. V S . D CIT, CPC (TDS ), GHAZIABAD . T AN NO. VPNM01186D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : MRS. SUMAN MALIK SR. DR DATE OF HEARING : 20 / 1 2 /201 8 . DATE OF PRONOUNCEMENT : 01 / 0 2 /201 9 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER THESE APPEAL S FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDER S OF COMMISSIONER OF INCOME TAX (APPEALS) - 1 , GUNTUR , BOTH DATED 22 /0 6 /201 3 FOR THE ASSESSMENT YEARS 20 13 - 14 & 20 14 - 1 5 . FACTS AND ISSUES INVOLVED IN BOTH THE APPEALS ARE SIMILAR, THEREFORE, HEARD TOGETHER AND PASSED CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE, FACTS ARE TAKEN FROM ITA 459/VIZ/2018 (A.Y. 2013 - 14) . 2 ITA NO S . 459 & 460 /VIZ/2018 ( MRS. A.V.N.C. HIGH SCHOOL ) 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE ORDER OF THE LD. CIT(A) - 1, GUNTUR IS CONTRARY TO THE FACTS AND ALSO THE LAW APPLICABLE TO THE FACTS OF THE CASE. 2. THE LD. CIT(A) - 1, GUNTUR IS NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN CHARGING A SUM OF RS. 1,10,200/ - U/S. 234E OF THE ACT, 1961 TOWARDS LATE FILING FEE. 3. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF APPEAL HEARING. 3 . FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSEE FILED A STATEMENT IN FORM N O . 26Q FOR QUARTER - 4 FOR THE FINANCIAL YEAR 2012 - 13 ON 03/10/2015 AGAINST THE DUE DATE 15/05/2013. ON PROCESSING THE SAME, THE ACIT, CPC (TDS) LEVIED LATE FILING FEE UNDER SECTION 234E OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') FOR THE ASSESSMENT YEAR 2012 - 13 FOR RS.1,10,200/ - . THE ASSESSEE HAS CHALLENGED THE SAME BEFORE THE LD. CIT(A). THE LD. CIT(A) BY FOLLOWING THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS. UOI (83 TAXMANN.COM 137) , DATED 20/03/2017 HELD TH A T THE PROVISIONS OF SECTION 200A(1)( C ) OF THE ACT IS CLARIFICATORY ONE, HENCE, EVEN PRIOR TO 01/06/2015 LATE FEE UNDER SECTION 234E IS CHARGEABLE AND CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 4 . ON BEING AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL. 3 ITA NO S . 459 & 460 /VIZ/2018 ( MRS. A.V.N.C. HIGH SCHOOL ) 5. LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ISSUE INVOLVED IN THIS APP EAL HAS BEEN CONSIDERED BY TH E HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. VS. UNION OF INDIA & ORS . [(2016) 289 CTR 602 (KAR.)] WHEREIN IT HAS BEEN CATEGORICALLY HELD THAT THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 01/06/2015 . 6 . ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIES BELOW. 8 . THE ONLY ISSUE INVO L VED IN THIS APPEAL IS WHETHER LEVY OF LATE FEE UNDER SECTION 234E CAN BE CHARGED PRIOR TO 01/06/2015 OR NOT. ACCORDING TO THE ASSESSING OFFICER AND THE LD. CIT(A) , SECTION 200A(1)(C) IS A CLARIFICATORY IN NATURE, THEREFORE, IT APPLIES EVEN THE PERIOD PRIO R TO 01/06/2015 BY FOLLOWING THE DECISION OF THE HON'BLE KARNATA KA HIGH COURT IN THE CASE OF RAJESH KOURANI (SUPRA) . THE COORDINATE BENCH OF THE VISAKHAPATNAM TRIBUNAL IN THE CASE OF SRI SAI DURGA HOUSING ESTATES VS. ACIT, CPC (TDS) IN 4 ITA NO S . 459 & 460 /VIZ/2018 ( MRS. A.V.N.C. HIGH SCHOOL ) ITA NOS. 2 & 3/VIZ/2018, DATED 26/04/2018 WHEREIN BY CONSIDERING THE JUDGMENT S OF THE HON'BLE GUJARAT & KARNATAKA HIGH COURT S AND ALSO THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF CIT VS. M/S. VEGETABLES PRODUCTS LTD. (88 ITR 192) HAS OBSERVED THAT THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IS MOST FAVOURABLE TO THE ASSESSEE, REQUIRED TO BE ADOPTED . 9 . THE HON'BLE KARNATAKA HIGH COURT HAS CONSIDERED THE SAME ISSUE IN THE CASE OF SREE AYYAPPA EDUCATIONAL CHARITABLE TRUST V S. DCIT [(2018) 301 CTR 150 (KAR . ) ] BY CONSIDERING THE JUDGMENT OF THE SAME HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS . (SUPRA) AND HELD THAT WHEN THE AMENDMENT MADE UNDER SECTION 200A OF THE ACT, WHICH HAS COME INTO EFFECT ON 01/06/2015 IS HELD TO BE HAVING PROSPECTIVE EFFECT , NO COMPUTATION OF FEE FOR THE DEMAND OR THE INTIMATION FOR THE FEE UNDER SECTION 234E COULD BE MADE FOR THE TDS DEDUCT ED FOR THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 01/06/2015 . HENCE, THE DEMAND NOTICES UNDER SECTION 200A BY THE RESPONDENT AUTHORITY FOR INTIMATION FOR PAYMENT OF FEE UNDER SECTION 234E CAN BE SAID AS WITHOUT ANY AUTHORITY OF LAW AND THE SAME ARE QUASHED AND SET ASIDE TO THAT EXTENT . 10 . THE HON'BLE KARNATAK A HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. (SUPRA) HAS HELD AS UNDER: - 5 ITA NO S . 459 & 460 /VIZ/2018 ( MRS. A.V.N.C. HIGH SCHOOL ) 22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PER THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE, UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY PROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE FIND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB - SECTION (1) OF SECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WILL NOT PERMIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST. 23. IN VIEW OF THE AFORESAID OBSERVATION AND DISCUSSION, SINCE THE IMPUGNED INTIMATION GIVEN BY THE RESPONDENT - DEPARTMENT AGAINST ALL THE APPELLANTS UNDER SECTION 200A ARE SO FAR AS THEY ARE FOR THE PERIOD PRIOR TO 1.6.20 15 CAN BE SAID AS WITHOUT ANY AUTHORITY UNDER LAW. HENCE, THE SAME CAN BE SAID AS ILLEGAL AND INVALID. 24. IF THE FACTS OF THE PRESENT CASES ARE EXAMINED IN LIGHT OF THE AFORESAID OBSERVATION AND DISCUSSION, IT APPEARS THAT IN ALL MATTERS, THE INTIMATION G IVEN IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A ARE IN RESPECT OF FEES UNDER SECTION 234E FOR THE PERIOD PRIOR TO 1.6.2015. AS SUCH, IT IS ON ACCOUNT OF THE INTIMATION GIVEN MAKING DEMAND OF THE FEES IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A , THE SAME HAS NECESSITATED THE APPELLANT - ORIGINAL PETITIONER TO CHALLENGE THE VALIDITY OF SECTION 234E OF THE ACT. IN VIEW OF THE REASONS RECORDED BY US HEREINABOVE, WHEN THE AMENDMENT MADE UNDER SECTION 200A OF THE ACT WHICH HAS COME INTO EFFECT ON 1.6.2 015 IS HELD TO BE HAVING PROSPECTIVE EFFECT, NO COMPUTATION OF FEE FOR THE DEMAND OR THE INTIMATION FOR THE FEE UNDER SECTION 234E COULD BE MADE FOR THE TDS DEDUCTED FOR THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HENCE, THE DEMAND NOTICES UNDER SECT ION 200A BY THE RESPONDENT - AUTHORITY FOR INTIMATION FOR PAYMENT OF FEE UNDER SECTION 234E CAN BE SAID AS WITHOUT ANY AUTHORITY OF LAW AND THE SAME ARE QUASHED AND SET ASIDE TO THAT EXTENT. 11 . IN THE PRESENT CASE, THE LATE FEE CHARGED BY THE ASSESSING OFFICER P E R I O D IS PRIOR TO 01/06/2015 , T HEREFORE, WE RESPECTFULLY 6 ITA NO S . 459 & 460 /VIZ/2018 ( MRS. A.V.N.C. HIGH SCHOOL ) FOLLOWING THE DECISION S OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE S OF FATHERAJ SINGHVI & SREE AYYAPA EDUCATIONAL CHARITABLE TRUST (SUPRA) , THE LATE FEE LEVIED BY THE ASSESSING OFFICER IS CANCELLED. ACCORDINGLY, LATE FEE LEVIED BY THE ASSESSING OFFICER FOR BOTH THE ASSESSMENT YEARS 2013 - 14 & 2014 - 15 ARE CANCELLED. THUS, BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. 12 . IN THE RESULT, BOTH THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 0 1 S T DAY OF FEB . , 201 9 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 1 S T FEB . , 201 9 . VR/ - COPY TO: 1. THE ASSESSEE - MRS. A.V.N.C. HIGH SCHOOL, A.V.N.C. HIGH SCHOOL, VISAKHAPATNAM. 2. THE REVENUE - DCIT, CPC (TDS), GHAZIABAD. 3. THE CIT (TDS), VIJAYAWADA. 4. THE CIT(A) - 1, GUNTUR. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM. 7 ITA NO S . 459 & 460 /VIZ/2018 ( MRS. A.V.N.C. HIGH SCHOOL )