Yeturu Bio Tec Limited , Hyderabad V. Income Tax Officer, TDS, Ward-2(4), Hyderabad

ITA 529/Hyd/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2315 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 21-10-2021
• Assessment Year: 2014-2015
• Appeal Filed On: 25-09-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUCHURI DINESH
• Keywords: Condonation of delay; TDS; Set aside
• Section: 234E; 200A; 201; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIRTUAL CONFERENCE) BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER IT A NO S . 529 & 530 /H/20 20 A . Y S . : 2014 - 15 & 2015 - 16 YETURU BIO TECH LTD., HYDERABAD. PAN A AAC Y0850F VS. INCOME - TAX OFFICER (TDS) , WARD 2 ( 4 ), HYDERABAD. (APPELLANT S ) (RESPONDENT) ASSESSEE BY: SMT. S. SANDHYA REVENUE BY: SHRI PARUCHURI DINESH DATE OF HEARING: 21 / 1 0/2021 DATE OF PRONOUNCEMENT: 25 / 10 /2021 O R D E R PER S.S. GODARA, J.M. : BOTH T H E S E APPEALS FILED BY ASSESSEE FOR AY 20 1 4 - 1 5 & 2015 - 16 ARE DIRECTED AGAINST THE C I T(A) - 8 , HYDERABAD S COMMON ORDER , DATED 05/10 / 201 8 , INVOLVING PROCEEDINGS U/S 200A OF THE INCOME TAX ACT, 1961 ; IN SHORT THE ACT . 2. WE NOTICE AT THE OUTSET THAT ASSESSEE S INSTANT APPEALS SUFFER FROM 661 DAYS DELAY IN FILING BEFORE THE ITAT. TO THIS EFFECT, THE ASSESSEE FILED AN A PETITION FOR I TA NO S . 529 & 530 / HYD/ 2020 YETURU BIOTECH LTD., HYD : - 2 - : CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT WHEREIN IT WAS INTER - ALIA, AFFIRMED THAT SINCE THE COUNSEL WAS PREOCCUPIED WITH TH E FILING OF RETURNS OF INCOME FOR THE AY 2018 - 19 IN AUDIT CASES AND APPELLATE ORDER PERTAINING TO THE PRESENT APPEALS MIXED UP WITH OTHER PAPERS IN THE OFFICE OF COUNSEL, WHICH THE COUNSEL LOST SIGHT OF THE SAME, CAUSED THE IMPUGNED DELAY IN FILING OF THE INSTANT APPEALS. CASE LAW COLLECTOR LAND ACQUISITION VS. MST. KATIJI & ORS, 1987 AIR 1353 (SC) AND UNIVERSITY OF DELHI VS. UNION OF INDIA, CIVIL APPEAL NO. 9488 & 9489/2019 DATED 17 DECEMBER, 2019, HOLD THAT SUCH A DELAY; SUPPORTED BY COGENT REASONS, DE SERVES TO BE CONDONED SO AS TO MAKE WAY FOR THE CAUSE OF SUBSTANTIAL JUSTICE. WE ACCORDINGLY HOLD THAT ASSESSEES IMPUGNED DELAY IN FILING THESE APPEALS IS NEITHER INTENTIONAL NOR DELIBERATE BUT DUE TO THE CIRCUMSTANCES BEYOND ITS CONTROL. THE SAME STAND S CONDONED. CASE S ARE NOW TAKEN UP FOR ADJUDICATION ON MERITS. 3. THE SUBSTANTIVE GROUND RAISED BY THE ASSESSEE S IN THESE APPEALS IS THAT THE CIT(A) ERRED IN UPHOLDING THE LATE FEE LEVIED BY THE AO U/S 234E . 4 . BRIEF FACTS OF THE CASE ARE, THE ASSESSEE COMPAN IES FILED ITS STATEMENTS IN FORM NO. 2 4 Q FOR QUARTERS 2, 3 & 4 IN FY 201 3 - 1 4 & AND IN FORM NO. 26Q FOR QUARTERS 1 TO 4 FOR FY 2014 - 15 RELEVANT TO AYS 201 4 - 1 5 & 201 5 - 1 6 . ON VERIFICATION OF THESE STATEMENTS, THE AO NOTICED THAT THE I TA NO S . 529 & 530 / HYD/ 2020 YETURU BIOTECH LTD., HYD : - 3 - : ASSESSEE FILED ALL THESE STATEMENTS, BELATEDLY AND HENCE, RAISED A DEMAND IN T HE SAID FY S ON ACCOUNT OF LATE FILING LEVY U/S 234E BY ISSUING INTIMATIONS U/S 200A. 5 . AGAINST THE SAID ACTION O F AO, ASSESSEE PREFERRED APPEALS BEFORE THE CIT(A) RAISING A GROUND THAT THE PROVISIONS TO INCLUDE LATE FEE U/S 234E IN INTIMATION U/S 200A IS NOT PERMISSIBLE UNDER LAW AND CONSEQUENTLY SUCH LEVY IS UNSUSTAINABLE IN LAW AND HENCE THE LEVY IS LIABLE TO BE DELETED. 6 . T HE CIT(A) RELYING ON THE JUDGEMENT OF HON BLE GUJARAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS. UOI, [2017] 83 TAXMANN.COM 137 CONFIRMED THE LATE FILING LEVY U/S 234E BY THE TDS CPC, GHAZIABAD. 7 . AGGRIEVED BY THE ORDERS OF CIT(A), THE ASSESSEE PREFERRED APPEALS BEFORE THE TRIBUNAL. 8 . WE H AVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD AS WELL AS GONE THROUGH THE ORDERS OF REVENUE AUTHORITIES. WE FIND THAT WHILE DECIDING THE ISSUE AGAINST THE APPELLANT ASSESSEE THE LD. CIT(A) HAS PLACED RELIANCE ON RAJESH KAURANI VS. UNION OF INDIA, 83 COM 137 (GUJ.) WHEREIN IT WAS HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSIN G A TDS STATEMENT OF DEDUCTION OF TAX AT SOURCE I TA NO S . 529 & 530 / HYD/ 2020 YETURU BIOTECH LTD., HYD : - 4 - : AND FOR MAKING ADJUSTMENT. THE LD. CIT(A) HAS FURTHER HELD THAT THIS DECISION WAS DELIVERED AFTER CONSIDERING NUMEROUS ITAT AND HIGH COURT DECISIONS AND THEREFORE THIS DECISION IN RAJESH KAURANI (SUPRA), HO LDS THE FIELDS. 8 .1 IT IS SEEN THAT PRIOR TO 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 OF THE ACT. THE PROVISION OF SECTION 234E OF THE ACT IS CHARGING PROVISION I.E. SUBSTANTIVE PROVISION WHICH COULD NOT BE APPLIED RETROSPECTIVELY, UNLESS IT IS EXPRESSLY PROVIDED IN THE ACT, TO LEVY THE LATE FEE FOR ANY DELAY IN FILING THE TDS STATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. THE COUNSEL FOR THE ASSESSEE HAS RIGHTLY CONTENDED THAT IN THE ABSENCE OF ENABLING PROVISIONS U/S 200A OF THE ACT, SUCH LEVY OF LATE FEE IS NOT VALID . 8 .2 WE FIND THA T SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S TERRA INFRA DEVELOPMENT LTD., HYDERABAD IN ITA NOS. 1876 & 1875/HYD/2017 FOR AYS 2013 - 14 AND 2014 - 15, ORDER DATED 03/10/2018, WHEREIN THE COORDINATE B ENCH HAS HELD AS UNDER: 4. WE FIND THAT THOUGH THE PROVISIONS FOR LEVY OF FEE IN CERTAIN CASES HAS BEEN BROUGHT INTO THE STATUTE BOOK W.E.F. 1.7.2012, IT HAS BEEN BROUGHT UNDER THE PURVIEW OF SECTION 200A ONLY W.E.F. 1.6.2015. THEREFORE, AS RIGHTLY HELD BY THE COORDINATE BENCH IN THE CASE OF M/S. SONALAC PAINTINGS & COATINGS LTD (CITED SUPRA) WE HOLD THAT THE INTEREST U/S 234E CANNOT BE LEVIED IN RESPECT OF I TA NO S . 529 & 530 / HYD/ 2020 YETURU BIOTECH LTD., HYD : - 5 - : TDS RETURNS FILED PRIOR TO 1.6.2015. FOR THE SAKE OF READY REFERENCE, THE RELEVANT PARA IS REPRODUCED HEREUNDER: '10. NOW COMING TO THE MERITS OF THE CASE, WE FIND FORCE IN THE ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT PRIOR TO 01.06.2015, THERE WAS NO MANDATE, AS PER THE STATUTE, TO MAKE ANY ADJUSTMENT ON ACCOUNT OF LEVY OF FEES U/S 234E WHILE PROCESSING TDS RETURNS U/S 200A. WE HAVE TAKEN NOTE OF THE ORDER OF THE HON'BLE GUJARAT HIGH COURT HOLDING THE AMENDMENT MADE TO SECTION 200A W.E.F. 01.06.2015, GIVING POWER TO MAKE ADJUSTMENT ON ACCOUNT OF FEES U/S 234E WHILE PROCESSING RETURNS U/S 200A TO BE RETROSPECTIVE IN NATURE, STATI NG THAT THIS POWER GIVEN TO THE AO IS A MACHINERY PROVISION WHILE THE SUBSTANTIVE PROVISION OF THE POWER TO LEVY FEES U/S 234E WAS ALWAYS THERE ON THE STATUTE FROM 01.06.2012. BUT AT THE SAME TIME, WE NOTE THAT THE HON'BLE KARNATAKA HIGH COURT HELD THAT LE VY OF FEES U/S 234E WHILE PROCESSING RETURNS, TDS U/S 200A PRIOR TO 01.06.2015 WAS WITHOUT ANY AUTHORITY OF LAW. WITH TWO DIVERGENT VIEW OF THE HON'BLE HIGH COURTS ON THE ISSUE AND IN THE ABSENCE OF ANY DECISION BY THE JURISDICTIONAL HIGH COURT, WE CONCUR WITH THE LEARNED COUNSEL FOR THE ASSESSEE THAT AS PER THE WELL ACCEPTED RULE OF CONSTRUCTION, IF TWO REASONABLE CONSTRUCTIONS OF A STATUTE ARE POSSIBLE THE CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. IN VIEW OF THE SAME, RESPECTFULLY FOLLOWING THE DECISION OF THE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI (SUPRA), WE HOLD THAT THE FEES LEVIED IN ALL THE PRESENT CASES U/S 234E PRIOR TO 01.06.2015 IN THE INTIMATIONS MADE U/S 200A WAS WITHOUT AUTHORITY OF LAW AND THE SAME IS THEREFORE, D IRECTED TO BE DELETED. IN VIEW OF THE ABOVE, ALL THE APPEALS OF THE ASSESSEE STAND ALLOWED'. I TA NO S . 529 & 530 / HYD/ 2020 YETURU BIOTECH LTD., HYD : - 6 - : 5. RESPECTFULLY FOLLOWING THE SAME, ASSESSEE'S APPEALS FOR BOTH THE AYS ARE ALLOWED. 8 . 3 IN THE CASE UNDER CONSIDERATION, ON PERUSAL OF RECORD, WE FIND THAT THE TDS RETURNS FILED BY THE ASSESSEE FOR THE RELEVANT PERIOD I.E., FY S 2013 - 14 & 2014 - 15 RELEVANT TO AY 201 4 - 15 & 2015 - 16 WE RE PRIOR TO 01/06/2015. THEREFORE, RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COORDINATE BENCH, WE SET ASIDE THE ORDERS OF CIT(A) AND DIRECT THE AO TO DELETE THE FEES LEVIED U/S 234E IN BOTH THE APPEALS UNDER CONSIDERATION. 9. IN THE RESULT, THE APPEAL S OF THE ASSESSEE ARE ALLOWED IN ABOVE TERMS . PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER , 2021 . SD/ - SD/ - (L . P . SAHU) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDE RABAD, DATED : 25 TH OCTOBER , 20 2 1 . K V I TA NO S . 529 & 530 / HYD/ 2020 YETURU BIOTECH LTD., HYD : - 7 - : C OPY TO : 1 2. YETURU BIOTECH LTD., H.NO. 843, YETURU, BANJARA AVENUE, ROAD NO. 1, BANJARA HILLS, HYDERABAD. 3 IT O (TDS) , WARD 2 ( 4 ), 4 TH FLOOR, A BLOCK, IT TOWERS, MASAB TANK, AC GUARD, HYDERABAD 3 C I T( A ) - 8 , HYDERABAD 4 CIT (TDS), HYDERABAD 5 ITAT, DR, HYDERABAD. 6 GUARD FILE.