Mr. Rajendra Prasad Tiwari, Indore V. A C I T , CPC-TDS, Ghaziabad

ITA 503/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8521 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 24-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNIT KUMAR
• Keywords: Retrospective amendment; TDS
• Section: 234E; 200A; 201; 192; 73

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.510/IND/2019 M/S KESHAV INDUSTRIES PVT. LTD, INDORE PAN: AADCK5715G ASSESSMENT YEAR 2013-14 (Q-4) APPELLANT BY SHRI PANKAJ MOGRA, AR RESPONDENT BY SHRI PUNIT KUMAR, SR. DR ITA NOS. 500 TO 508/IND/2019 MR. RAJENDRA PRASAD TIWARI PAN:AATPT3684Q ASSESSMENT YEARS: 2013-14 (Q-2), (Q-3), (Q-4), 2014 - 15 (Q-1), (Q-2), (Q-3), 2015-16 (Q-1), (Q-2) & (Q-3 APPELLANT BY NONE RESPONDENT BY SHRI PUNIT KUMAR, SR. DR DATE OF HEARING: 14.07.2020 DATE OF PRONOUNCEMENT: 14.07.2020 ITANOS. 500, 500 TO 508 OF 2019 M/S KESHAV INDUSTRIES & MR. RAJENDRA PRASAD TIWARI 2 / O R D E R PER BENCH: THE ABOVE CAPTIONED BUNCH OF 10 APPEALS ARE AT THE INSTANCE OF RESPECTIVE ASSESSEE(S) AND ARE DIRECTED AGAIN ST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX(APPEALS )-I & (APPEALS)-II, INDORE (IN SHORT CIT(A)) RESPECTIVEL Y. AS THE ISSUE RAISED IN ALL THESE APPEALS ARE SIMILAR, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMO N ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. FROM PERUSAL OF THE GROUNDS WE FIND THAT ONLY ONE ISSUE NEEDS TO BE ADJUDICATED AS TO WHETHER THE REVENUE AUTHORITIES WERE JUSTIFIED IN LEVYING THE LATE FEES U /S 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DED UCTED AT SOURCE U/S 200A OF THE ACT BEFORE THE AMENDMENT W AS BROUGHT IN W.E.F. 01.06.2015 IN THE PROVISIONS OF S ECTION 200A OF THE ACT. 3. BRIEF FACTS COMMON IN ALL THESE APPEALS ARE THAT THE APPELLANT WAS REQUIRED TO FILE THE STATEMENT OF TAX DEDU CTED AT SOURCE FOR THE RESPECTIVE QUARTER BUT FAILED TO DO S O WITHIN THE DUE DATE PRESCRIBED IN THE LAW FOR FILING SUCH QUARTERLY TDS RETURNS. AS PER THE PROVISIONS OF SECTI ON ITANOS. 500, 500 TO 508 OF 2019 M/S KESHAV INDUSTRIES & MR. RAJENDRA PRASAD TIWARI 3 234E OF THE ACT, FEE FOR DEFAULT IN FURNISHING THE S TATEMENT IS LEVIABLE IF THE STATEMENT OF TDS ARE NOT DELIVERED WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 2 00 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C OF THE A CT. 4. THE REVENUE AUTHORITIES HAVE LEVIED THE LATE FEES F OR DEFAULT IN FURNISHING THE STATEMENT IN THE PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE PREPARED U/S 200A OF THE ACT. AGAINST THE LEVY OF LATE FEE U/S 234E IN THE STATEMENT PROCESSED U/S 200A OF THE ACT, APPEAL WAS PREFERRED BY THE ASSESSEE(S) FOR RESPECTIVE QUARTERS F OR THE RESPECTIVE ASSESSMENT YEARS BEFORE LD. CIT(A) PLEADIN G THAT BEFORE THE AMENDMENT WAS BROUGHT IN BY THE FINANCE ACT , 2015 W.E.F. 01.06.2015, THE REVENUE AUTHORITIES WERE NOT HAVING THE POWER TO LEVY THE LATE FEES U/S 234E OF TH E ACT IN THE STATEMENT PROCESSED U/S 200A OF THE ACT. 5. HOWEVER, ASSESSEE FAILED TO SUCCEED IN ALL THESE 10 APPEALS BEFORE LD. CIT(A) AND NOW ARE IN APPEALS BEFORE T HE TRIBUNAL RAISING THE ABOVE REFERRED COMMON ISSUE. 6. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE COMMON ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ITANOS. 500, 500 TO 508 OF 2019 M/S KESHAV INDUSTRIES & MR. RAJENDRA PRASAD TIWARI 4 ASSESSEE BY THE DECISION OF THE COORDINATE BENCH, IND ORE IN THE CASE OF INDORE SCHOOL OF SOCIAL WORK, INDORE ITA NOS.117 TO 120/IND/2019 AND OTHERS ORDER DATED 20.02.2020. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTL Y ARGUED SUPPORTED THE ORDER OF LD. CIT(A). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US AND CAREFULLY GONE THROUGH VAR IOUS JUDGMENTS REFERRED AND RELIED BY THE LD. COUNSEL FOR ABOVE CAPTIONED ASSESSEE. THE COMMON ISSUE RAISED IN ALL THE SE BUNCHES OF APPEALS IS THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE LEVY OF LATE FEE U/S 234 E OF THE ACT IN THE STATEMENT OF TAX DEDUCTED AT SOURCE PROCES SED U/S 200A OF THE ACT,EVEN WHEN THE AMENDMENT BROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 PAVED THE WAY FOR LEVYING THE FEE U/S 234E OF THE ACT IN THE STATEMENT PROCESSED U/S 200A OF THE ACT. 9. FROM PERUSAL OF THE ABOVE ISSUE WE FIND THAT THE SA ME HAS BEEN ADJUDICATED BY US IN THE CASE OF INDORE SCHOOL OF SOCIAL WORK, INDORE ITA NOS.117 TO 120/IND/2019 ITANOS. 500, 500 TO 508 OF 2019 M/S KESHAV INDUSTRIES & MR. RAJENDRA PRASAD TIWARI 5 ORDER DATED 20.02.2020 AFTER EXAMINING SIMILAR FACTS AS WELL AS VARIOUS JUDICIAL PRONOUNCEMENTS. THE REVENUE AUTHORITIES FAILED TO CONTROVERT THE CONTENTION OF LD . COUNSELS FOR THE ASSESSEES THAT THE COMMON ISSUE RAIS ED IN ALL THESE BUNCH OF 10 APPEALS ARE SQUARELY COVERED IN FAVOUR OF ASSESSEE(S) BY THE DECISIONS IN THE CASE OF INDORE SCHOOL OF SOCIAL WORK, INDORE ITA NOS.117 TO 120/IND/2019 & OTHERS ORDER DATED 20.02.2020, STATE BANK OF INDIA, GENDA CHOWK AND OTHERS DATED 13.11.2018(SUPRA) AND M /S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018(SUPRA) AND BHUPESH KUMAR J. SANGHVI & OTHERS IN ITA NO.15/IND/2018 & OTHERS, ORDER DATED 22.01.2019 (SUPRA) WHEREIN THE TRIBUNAL AFTER FOLLOWING THE DECISIONS DECIDED IN FAVO UR OF THE ASSESSEE OBSERVING AS FOLLOWS:- 12. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMS TANCES OF THE CASE AS WELL AS FOLLOWING THE DECISIONS GIVEN BY US IN THE CASE OF STATE BANK OF INDIA, GENDA CHOWK AND OTHER S DATED 13.11.2018 (SUPRA) AND M/S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/ 201 7 & OTHERS, ORDER DATED 20.12.2018(SUPRA) AND BHUPES H KUMAR J. SANGHVI & OTHERS IN ITANO.15/IND/2018 & OTHERS, ITANOS. 500, 500 TO 508 OF 2019 M/S KESHAV INDUSTRIES & MR. RAJENDRA PRASAD TIWARI 6 ORDER DATED 22.01.2019(SUPRA) ARE OF THE OPINION T HAT IN THE GIVEN SET OF FACTS OF THE INSTANT APPEALS WHEREIN FEE U/S 234E OF THE ACT WAS LEVIED IN THE STATEMENTS PROCESSED U/S 200A OF THE ACT BEFORE 01.06.2015 I.E. BEFORE THE AMENDMEN T BROUGHT INTO EFFECT FROM 01.06.2015 IN SECTION 200A OF THE ACT THEREBY ENABLING THE REVENUE AUTHORITIES TO RAISE DEMAND I N RESPECT OF LEVY OF FEES U/S 234E OF THE ACT. LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF LATE FEES U/S 234E OF THE ACT BY THE ASSESSING OFFICER. ACCORDINGLY FINDINGS OF LD. CIT(A) IN ALL THESE 165 APPEALS ARE REVERSED AND REVENUE IS DIRECTED TO DE LETE THE LEVY OF FEES U/S 234E OF THE ACT IN ALL THESE 165 CASES . THUS, COMMON ISSUE RAISED IN THESE BUNCH OF APPEALS IS DECIDED IN FAVOUR OF THE ASSESSEES. 10. WE ALSO OBSERVE THAT THE CO-ORDINATE BENCH AGRA IN THE CASE OF SUDERSHAN GOYAL VS DCIT (TDS) ITA NO.442/AGRA/2017 ORDER DATED 09.04.2018 CONSIDERING THE SIMILAR ISSUE DECIDING IN FAVOUR OF THE ASSESSEE OB SERVED AS FOLLOWS:- THE ISSUE INVOLVED IN THIS APPEAL IS AS TO WHETHER LATE FILING FEE U/S 234E OF THE IT ACT HAS RIGHTLY BEEN CHARGED IN THE INTIMATION DATED 10.11.2013 ISSUED U/S 200 A OF THE ACT WHILE PROCESSING THE TDS RETURNS/STATEMENT, THE ENABLING CLAUSE (C) HAVING BEEN INSERTED IN THE SECTION W.E.F. 01.0 6.2015. BEFORE 01.06.2015, THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U /S 234E. AS SUCH, AS PER THE ASSESSEE, IN RESPECT OF TDS STATEM ENT FILED FOR ITANOS. 500, 500 TO 508 OF 2019 M/S KESHAV INDUSTRIES & MR. RAJENDRA PRASAD TIWARI 7 A PERIOD PRIOR TO 01.06.2015, NO LATE FEE COULD BE LEVIED IN THE INTIMATION ISSUED U/S 200 A OF THE ACT . 3. HEARD. THE LD. CIT(A), WHILE DECIDING THE MATTER AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UOI ', 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD TH AT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION O F TAX AT SOURCE AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) H AS HELD THAT THIS DECISION WAS I.T.A NO. 442/AGRA/2017 & S.A. NO . 01/AGRA/2018 DELIVERED AFTER CONSIDERING NUMEROUS I TAT/HIGH COURT DECISIONS AND SO, THIS DECISION IN 'RAJESH KA URANI' (SUPRA) HOLDS THE FIELD. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRIFATE HRAJSINGHVI AND OTHERS VS.UOI', 73 TAXMANN.COM 252 (KER), AS AL SO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES THE ISS UE IN FAVOUR OF THE ASSESSEE. THE ONLY OBJECTION OF THE LD. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TA KEN INTO CONSIDERATION BY THE HON'BLE GUJARAT HIGH COURT WHI LE PASSING 'RAJESH KAURANI' (SUPRA). HOWEVER, WHILE OBSERVING SO, THE LD. CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE SE TTLED LAW THAT WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFER ENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESS EE NEEDS TO BE FOLLOWED. IT HAS SO BEEN HELD BY THE HON'BLE SUP REME COURT IN ' CIT VS. VEGETABLE PRODUCTS LTD .', 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DECISION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HIGH COURT QUA THE A SSESSEE. 5. IN 'SHRI FATEHRAJ SINGHVI AND OTHERS' (SUPRA) IT HAS BEEN HELD, INTER ALIA, AS FOLLOWS: '22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PE R THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE , I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY CLAUSE ITANOS. 500, 500 TO 508 OF 2019 M/S KESHAV INDUSTRIES & MR. RAJENDRA PRASAD TIWARI 8 (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN B E READ AS HAVING PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARA CTER OR EFFECT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMP UTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SE CTION 200A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR T HAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WILL NOT PER MIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST.' 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING 'SH RI FATEHRAJ SINGHVI AND OTHERS' (SUPRA), 'SIBIA HEALTHCARE PVT. LTD. VS. DCIT (TDS)', ORDER DATED 09.06.2015 PASSED IN ITA NO.90/ ASR/2015, FOR A.Y.2013-14, BY THE AMRITSAR BENCH OF THE TRIBU NAL, AND 'SHRI KAUR CHAND JAIN VS. DCIT, CPC (TDS) GHAZIABAD ', ORDER DATED 15.09.2016, IN ITA NO.378/ASR/2015, FOR A.Y. 2012-13, I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JUSTIFIED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CA NCELLED. 11. WE, THEREFORE RESPECTFULLY FOLLOWING ABOVE DECI SIONS ARE OF THE OPINION THAT IN THE GIVEN SET OF FACTS OF THE I NSTANT APPEALS WHEREIN FEE U/S 234E OF THE ACT WAS LEVIED IN THE S TATEMENTS PROCESSED U/S 200A OF THE ACT BEFORE 01.06.2015 I.E . BEFORE THE AMENDMENT BROUGHT INTO EFFECT FROM 01.06.2015 IN SE CTION 200A OF THE ACT THEREBY ENABLING THE REVENUE AUTHOR ITIES TO RAISE DEMAND IN RESPECT OF LEVY OF FEES U/S 234E OF THE ACT, LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF LATE FEES U/ S 234E OF THE ACT BY THE ASSESSING OFFICER. ACCORDINGLY FINDINGS OF LD. CIT(A) IN ALL THESE 10 APPEALS ARE REVERSED AS WE HAVE REC ENTLY TAKEN A ITANOS. 500, 500 TO 508 OF 2019 M/S KESHAV INDUSTRIES & MR. RAJENDRA PRASAD TIWARI 9 CONSIDERED VIEW AGAINST THE REVENUE ON EARLIER ORDE RS OF LD. CIT(A) WHEREIN THE IDENTICAL ORDERS BY RESPECTIVE C IT(A) WERE PASSED AND ACCORDINGLY THE REVENUE IS DIRECTED TO D ELETE THE LEVY OF FEES U/S 234E OF THE ACT IN ALL THESE 10 CA SES. THUS, COMMON ISSUE RAISED IN THESE BUNCH OF APPEALS IS DE CIDED IN FAVOUR OF THE ASSESSEE(S). 12. IN THE RESULT, ALL 10 APPEALS AT THE INSTANCE O F ASSESSEE(S) ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 14.07.202 0. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 14/07/2020 /DEV COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE