Desai Infrastructure Pvt. Ltd., Navsari V. The Assistant Commissioner of Income Tax, CPC-TDS, Valsad

ITA 505/SRT/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1147 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 23-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 234E; 200A; 22

Judgement Text

INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO.505/SRT/2018 (FOR Q-2, FORM NO-24Q) FOR A Y- 2012-13 ITA NO.506/SRT/2018 (FOR Q-2, FORM NO-26Q) FOR A Y- 2012-13 ITA NO.507/SRT/2018 (FOR Q-3, FORM NO-24Q) FOR A Y- 2012-13 ITA NO.508/SRT/2018 (FOR Q-3, FORM NO-26Q) FOR A Y- 2012-13 ITA NO.509/SRT/2018 (FOR Q-4, FORM NO-24Q) FOR A Y- 2012-13 ITA NO.510/SRT/2018 (FOR Q-4, FORM NO-26Q) FOR A Y- 2012-13 ITA NO.511/SRT/2018 (FOR Q-1, FORM NO-24Q) FOR A Y- 2013-14 ITA NO.512/SRT/2018 (FOR Q-1, FORM NO-26Q) FOR A Y- 2013-14 ITA NO.513/SRT/2018 (FOR Q-2, FORM NO-24Q) FOR A Y- 2013-14 ITA NO.514/SRT/2018 (FOR Q-2, FORM NO-26Q) FOR A Y- 2013-14 ITA NO.515/SRT/2018 (FOR Q-3, FORM NO-24Q) FOR A Y- 2013-14 ITA NO.516/SRT/2018 (FOR Q-3, FORM NO-26Q) FOR A Y- 2013-14 ITA NO.517/SRT/2018 (FOR Q-4, FORM NO-24Q) FOR A Y- 2013-14 ITA NO.518/SRT/2018 (FOR Q-4, FORM NO-26Q) FOR A Y- 2013-14 ITA NO.519/SRT/2018 (FOR Q-1, FORM NO-24Q) FOR A Y- 2014-15 ITA NO.520/SRT/2018 (FOR Q-1, FORM NO-26Q) FOR A Y- 2014-15 ITA NO.521/SRT/2018 (FOR Q-2, FORM NO-24Q) FOR A Y- 2014-15 ITA NO.522/SRT/2018 (FOR Q-2, FORM NO-26Q) FOR A Y- 2014-15 ITA NO.523/SRT/2018 (FOR Q-3, FORM NO-24Q) FOR A Y- 2014-15 ITA NO.524/SRT/2018 (FOR Q-3, FORM NO-26Q) FOR A Y- 2014-15 ITA NO.525/SRT/2018 (FOR Q-4, FORM NO-24Q) FOR A Y- 2014-15 ITA NO.526/SRT/2018 (FOR Q-4, FORM NO-26Q) FOR A Y- 2014-15 ( VIRTUAL COURT HEARING ) DESAI INFRASTRUCTURE PRIVATE LIMITED, A-100, SATSANG APARTMENT, NUTAN SOCIETY ROAD, MAHARSHI ARVIND MARG, NAVSARI-396445 VS. ACIT, CPC-TDS, AAYAKAR BHAWAN, SECTOR-3, VAISHALI, GHAZIABAD. PAN:AABCD 4344 E APPELLANT/ ASSESSEE RESPONDENT/ REVENUE ASSESSEE BY : MR. SUJESH SURATWALA - CA/ AR REVENUE BY : MRS. ANUPMA SINGLA, SR-DR : DATE OF HEARING : 01/07/2021 ITA NO.505 TO 526/SRT/2018 (AY 2012-13 TO 2014-15 DESAI INFRASTRUCTURE PRIVATE LIMITED 2 DATE OF PRONOUNCEMENT : 01/07/2021 ORDER PER BENCH; 1. THIS GROUP OF 22 APPEALS BY ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VALSAD HEREINAFTER REFERRED AS LD. CIT(A) ALL DATED 04-02-2018, WHICH IN TURN ARISE AGAINST THE ORDER CENTRAL PROCESSING CENTER (CPC) GHAZIABAD, IN LEVYING LATE FEE CHARGES FOR DELAY IN FURNISHING STATEMENT OF TAX DEDUCTED AT SOURCE (TDS) FOR VARIOUS QUARTERS FOR ASSESSMENT YEAR 2013-14 TO 2015-16. IN ALL APPEALS THE ASSESSEE HAS RAISED COMMON GROUNDS OF APPEALS, THE FACTS IN ALL APPEALS ARE COMMON, THUS ALL THE APPEALS WERE CLUBBED, HEARD TOGETHER AND ARE DECIDED BY COMMON ORDER TO AVOID THE CONFLICTING DECISIONS. FOR APPRECIATION OF FACTS THE FACTS IN ITA NO. 505/SRT/2018 (2ND QUARTER IN TDS STATEMENT FURNISHED IN FORM NO. 24-Q FOR A.Y. 2013-14) IS TREATED AS LEAD CASE. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL: (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS ALSO ON LAW LEARNED DCIT, CPC TDS HAS ERRED IN LEVYING THE LATE FEE UNDER SECTION 234E OF THE ACT WHICH IS ULTRAVIRES AND THE SAME HAS BEEN CONFIRM BY LD. CIT(A) WHICH IS REQUIRED TO BE DELETED SINCE THE CHARGES ARE APPLICABLE FROM 01.06.2015. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS ALSO ON LAW LEARNED DCIT, CPC TDS HAS ERRED IN GIVING EFFECT TO THE LEVY OF LATE FEE IN THE COURSE OF INTIMATION UNDER SECTION 200A OF THE ACT. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS ALSO ON SUBJECT THE LEARNED DCIT,CPC TDS SHOULD HAVE INITIATED SEPARATE PROCEEDINGS UNDER SECTION 234E. ITA NO.505 TO 526/SRT/2018 (AY 2012-13 TO 2014-15 DESAI INFRASTRUCTURE PRIVATE LIMITED 3 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE (TDS) ON MAKING CERTAIN PAYMENTS AS PER CHAPTER XVII OF INCOME TAX ACT. THE ASSESSEE DEDUCTED SUCH TAX AT SOURCE AND FILED STATEMENT OF TDS. HOWEVER, THERE WAS CERTAIN DELAY IN FURNISHING/ FILING THE STATEMENT OF TDS OF VARIOUS QUARTERS. THE CENTRAL PROCESSING CENTRE (CPC) GHAZIABAD, WHILE PROCESSING SUCH STATEMENT LEVIED LATE FEE OF RS. 70,200/- AND INTEREST OF RS.22,460/- THEREUPON FOR 2ND QUARTER OF A.Y. 2013-14, VIDE INTIMATION DATED 29TH DECEMBER 2013. SIMILAR LATE FEE CHARGES AND INTEREST LEVIED FOR OTHER DIFFERENT QUARTERLY RETURNS. 3. AGGRIEVED BY THE LEVY OF LATE FEE CHARGES THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A) THE LD. CIT(A) WHILE DISMISSING ALL THE APPEALS HELD THAT THE HONBLE GUJARAT HIGH COURT IN RAJESH KOURANI VS UOI (SUPRA) HELD THAT SECTION 234E IS CHARGING PROVISION CREATING A CHARGE FOR LEVYING FEE FOR CERTAIN DEFAULT IN FILING STATEMENT AND FEE PRESCRIBED UNDER SECTION 234E COULD BE LEVIED EVEN IN ABSENCE OF REGULATORY PROVISION BEING FOUND IN SECTION 200A FOR COMPUTATION OF FEE.ALL THE APPEALS OF THE ASSESSEE WAS DISMISSED WITH SIMILAR OBSERVATION. THUS, FURTHER AGGRIEVED THE ASSESSEE HAS FILED PRESENT APPEAL BEFORE THIS TRIBUNAL. 4. WE HAVE HEARD THE SUBMISSION OF THE LEARNED AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND THE LEARNED DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ITA NO.505 TO 526/SRT/2018 (AY 2012-13 TO 2014-15 DESAI INFRASTRUCTURE PRIVATE LIMITED 4 ON RECORD. THE LD AR FOR THE ASSESSEE SUBMITS THAT THE LEVY OF LATE FEE UNDER SECTION 234E IN FURNISHING THE STATEMENTS OF TDS WAS INSERTED VIDE FINANCE AT 2012, W,E.F 01.06.2015. ALL THE TDS STATEMENT WERE FURNISHED BY THE ASSESSEE FOR THE PERIOD PRIOR TO 1ST JUNE 2015 AND THE PROVISIONS OF SECTION 234E ARE NOT APPLICABLE FOR THE TDS RETURN FILED PRIOR TO THAT PERIOD. THE LD. AR FOR THE ASSESSEE FURTHER SUBMITS THAT IT IS ADMITTED FACTS THAT TDS WAS DEDUCTED PRIOR TO 01-06-2015. THE HON'BLEKARNATAKA HIGH COURT IN FATHERAJ SINGHVI VS UOI REPORTED VIZ (73 TAXMANN.COM 252) WAS HELD THAT THE AMENDMENT IN SECTION 200A HAS COME INTO EFFECT ON 01.06.2015 AND HAS PROSPECTIVE EFFECT NO COMPUTATION OF FEE FOR THE DEMAND OR THE INTIMATION FOR FEE UNDER SECTION 234E CAN BE MADE FOR TDS DEDUCTED PRIOR TO 01.06.2015, HENCE THE DEMAND OF FEE UNDER SECTION 234E IS WITHOUT AUTHORITY OF LAW. 5. THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF LOWER AUTHORITIES. THE LD. DR FOR THE REVENUE SUBMITS THAT THE LD. CIT(A) HAS ELABORATELY DISCUSSED THE APPLICABILITY OF SECTION 23E AS WELL AS SECTION 200A OF THE ACT AND MADE RELIANCE ON THE DECISION OF GUJARAT HIGH COURT IN RAJESH KOURANI VS UOI (SUPRA). THUS, SHE FULLY SUPPORT THE ORDER OF LD. CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO DELIBERATED ON VARIOUS CASE LAWS RELIED BY THE PARTIES. ON PERUSAL OF GROUND OF APPEAL, WE ITA NO.505 TO 526/SRT/2018 (AY 2012-13 TO 2014-15 DESAI INFRASTRUCTURE PRIVATE LIMITED 5 FIND THAT THE ASSESSEE HAS RAISED MULTIPLE GROUNDS OF APPEAL CHALLENGING THE VALIDITY OF ORDER PASSED BY LOWER AUTHORITIES. HOWEVER, IN OUR VIEW THE SUBSTANTIAL GROUNDS OF APPEAL IS WHETHER THE LOWER AUTHORITIES ARE JUSTIFIED IN CHARGING LATE FEE ON LATE FURNISHING THE STATEMENTS OF TDS OF VARIOUS QUARTERS OF DIFFERENT ASSESSMENT YERAS. THERE IS NO DISPUTE THAT THE ASSESSEE MADE TDS STATEMENT FURNISHED BY THE ASSESSEE IN ALL QUARTERS WERE PRIOR TO 01-06-2015. THE HONBLE KARNATAKA HIGH COURT IN FATHERAJ SINGHVI VS UOI REPORTED VIZ (73 TAXMANN.COM 252) WAS HELD THAT THE AMENDMENT IN SECTION 200A HAS COME INTO EFFECT ON 01.06.2015 AND HAS PROSPECTIVE EFFECT NO COMPUTATION OF FEE FOR THE DEMAND OR THE INTIMATION FOR FEE UNDER SECTION 234E CAN BE MADE FOR TDS DEDUCTED PRIOR TO 01.06.2015, HENCE THE DEMAND OF FEE UNDER SECTION 234E IS WITHOUT AUTHORITY OF LAW. 7. SO FAR AS RELIANCE BY LD. DR FOR THE REVENUE IN CASE OF RAJESH KOURANI VS UOI (SUPRA) IS CONCERN, WE FIND THAT THE HON'BLE HIGH COURT IN SAID CASE UPHELD THE CONSTITUTIONAL VALIDITY AND ALSO HELD THAT FEE PRESCRIBED UNDER SECTION 234E COULD BE LEVIED EVEN WITHOUT REGULATORY PROVISION. WE FURTHER FIND THAT AFTER THE DECISION OF RAJESH KOURANI (SUPRA), THE COORDINATE BENCH OF TRIBUNAL BY FOLLOWING THE ORDER OF KARNATAKA HIGH COURT IN FATHERAJ SINGHVI VS UOI(SUPRA) HELD THAT THE PROVISIONS OF SECTION 234E ARE NOT RETROSPECTIVE, SOME OF THE CASE AS RELIED BY LD. AR FOR THE ASSESSEE, WHICH WE HAVE REFERRED IN ITA NO.505 TO 526/SRT/2018 (AY 2012-13 TO 2014-15 DESAI INFRASTRUCTURE PRIVATE LIMITED 6 PARA- (SUPRA). IN THE RESULT THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS ALLOWED. 8. CONSIDERING OUR FINDING IN THIS APPEAL ALL THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED WITH SIMILAR OBSERVATION. 9. IN THE RESULT ALL THE APPEALS ARE ALLOWED. ORDER PRONOUNCED AT THE TIME OF HEARING ON 01ST JULY 2021 IN VIRTUAL COURT PROCEEDINGS. SD/- SD/- (DR ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 01/07/2021 RAHUL SHARMA SR. PS (ON TOUR) COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR 6. GUARD FILE BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, ITAT, SURAT