VIVEK JAIPRAKASH DESAI, MUMBAI V. ACIT-CPC(TDS), GAZIABAD

ITA 513/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7283 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2016-2017
• Appeal Filed On: 01-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: TDS
• Section: 154; 234E; 200A; 201; 44AB

Judgement Text

ITA NO. 513 /MUM/ 2019 ASSESSMENT Y EAR: 2016 - 17 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI F BENCH, MUMBAI [CORAM : PRAMOD KUMAR (VICE PRESIDENT) A ND AMARJIT SINGH (JUDICIAL MEMBER) ] ITA NO. 513 /MUM/ 2019 ASSESSMENT YEAR: 2016 - 17 VIVEK JAIPRAKASH DESAI .APPELLANT OFFICE NO. 1, BUILDING NO.3, VIVINA CHSL.M.A. ROAD OPP., ANDHERI WEST RAILWAY STATION, ANDHERI (W), MUMBAI - 400 058 [PAN: AGJPD 9649 E ] VS ACIT - CPC(TDS) ..........RESPONDENT AAYAKAR BHAWAN, SECTOR - 3, VAISHALI, GHAZIABAD, UP - 201 010 APPEARANCES BY S. D. CHHEDA FOR T HE AP P ELLANT CHAUDHARY ARUNKUMAR SINGH FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JANUARY 29 , 2020 DATE OF PRONOUNC EMENT : JANUARY 31 , 2020 ORDER PER PRAMOD KUMAR, VP : 1. BY WAY OF THIS APPEAL, THE ASSESSEE - APPELLANT HAS CHALLENG ED THE CORRECTNESS OF THE ORDER DAT ED 19.09.2018, PASSED BY THE CIT(A) - 60 , MUMBAI, IN THE MATTER OF LEVY OF LATE FEE UNDER SECTION 234E R.W.S. 200A OF THE INCOME TAX ACT, 1 961, FOR THE FINANCIAL YEAR 2015 - 16. 2. GRIEVANCES RAISED BY THE APPELLANT ARE AS FOLLOWS: 1) THAT THE LEARNED CIT (A) HAS ERRED IN LAW AND IN FACTS TO CONFIRM ACTION OF ACIT - CPC (IDS) TO LEVY LATE FEES OF RS.33,750/ - & ISSUED ORDER U/S 200A OF THE ACT. 2) THE LEARNED CIT (A) HAS FAILED TO UNDERSTAND THAT THE APPELLANT WAS NOT LIABLE TO DEDUCT THE TDS AS HE BEING AN INDIVIDUAL AND HIS LAST YEAR TURNOVER I.E. OF F.Y.14 - 15 DID NOT ITA NO. 513 /MUM/ 2019 ASSESSMENT Y EAR: 2016 - 17 PAGE 2 OF 4 EXCEED THE LIMIT SPECIFIED U/S 44AB AND THE APPELLANT CANNOT BE CHARGED WITH PENALTY WHEN THERE WAS NO RESP ONSIBILITY FOR DEDUCTION OF TDS U/S 190 TO 203AA. 3) THE LEARNED CIT (A) HAS FAILED TO UNDERSTAND THAT WHEN THE PRESCRIBED AUTHORITY HAS BEEN VESTED WITH THE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT ONLY WITH REGARD TO LEVY OF FEES BY THE SUBSTITUTION MADE BY FINANCE (NO.2) ACT, 2015 W.E.F. 01.06.2015,THEN SUCH POWER COMES INTO EFFECT FROM THE DATE OF SUBSTITUTION AND CANNOT BE APPLIED RETROSPECTIVELY. 3. TO ADJUDICATE ON THIS APPEAL IT IS SUFFICIENT TO TAKE NOT E OF THE FACT THAT OUT OF THE IMPUGNED LEVY OF RS.33,750/ - UNDER SECTION 234E, THE LEVY OF RS.30,000/ - PERTAINS TO THE PERIOD PRIOR TO 01.06.2015, AND THE ISSUE WHETHER SUCH A LEVY UNDER SECTION 234E R.W.S. 200A OF THE ACT COULD BE MADE IS NOW COVERED IN FAVOUR OF THE ASSESSEE BY A CO - ORDINATE BENCH DECISION IN THE CASE OF GAN G AMA I COLLEGE OF ENGINEERING VS. ACIT (IN ITA NOS. 1167 TO 1171/PUN/2018, VIDE ORDER DATED 06.11.2018) WHEREIN THE CO - ORDINATE BENCH HAS, INTER ALIA , OBSERVED AS FOLLOWS: 10. SINC E THE ISSUE ARISING IN THE PRESENT BUNCH OF APPEALS IS SIMILAR TO THE ISSUE BEFORE THE TRIBUNAL IN THE CASES OF MEDICAL SUPERINTENDENT RURAL HOSPITAL AND JUNAGADE HEALTHCARE PVT. LTD. (SUPRA) AND WE HAVE DECIDED BOTH THE ISSUES IN FAVOUR OF ASSESSEE, WE HO LD THAT THE ASSESSEE IS NOT LIABLE FOR LEVY OF LATE FILING CHARGES UNDER SECTION 234E OF THE ACT FOR THE PERIOD PRIOR TO JUNE, 2015 IN THE ABSENCE OF AMENDMENT TO SECTION 200A OF THE ACT, WHICH WAS BROUGHT ON STATUTE FROM 01.06.2015. CONSEQUENTLY, WE ALSO HOLD THAT THE APPEALS FILED BY ASSESSEE WERE IN TIME SINCE THE PERIOD HAS TO BE RECKONED FROM THE DATE OF ORDER UNDER SECTION 154 OF THE ACT AND NOT FROM THE DATE OF ISSUE OF INTIMATION UNDER SECTION 200A OF THE ACT. ACCORDINGLY, WE DELETE LATE FILING FEES LEVIED UNDER SECTION 234E OF THE ACT FOR THE PERIOD PRIOR TO JUNE, 2015 THOUGH TEH RETURNS OF INCOME WERE FILED AFTER JUNE, 2015 AND EVEN ORDER LEVYING LATE FILING FEES UNDER SECTION 234E OF THE ACT WAS PASSED AFTER JUN2, 2015. THE GROUNDS OF APPEAL RAISE D BY ASSESSEE ARE THUS, ALLOWED. 4. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PERUSED THE MATERIAL ON RECORD, WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE CO - ORDINATE BENCH. RESPECTFULLY FOLLOWING THE SAME, WE GRANT RELIEF TO THE EXTENT OF RS.30,000/ - AS ABOVE. TO THIS EXTENT, GRIEVANCE OF THE ASSESSEE IS UPHELD. 5. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED IN TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 31 ST DAY OF JANUARY, 2020 S D / - SD/ - AMARJIT SINGH PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) MUMBAI , D ATED THE 31 ST D AY OF JANUARY, 2020 ITA NO. 513 /MUM/ 2019 ASSESSMENT Y EAR: 2016 - 17 PAGE 3 OF 4 COPIES TO : (1) THE APPLICANT (2) THE RESPONDEN T (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI