Topline Buildtech P.Ltd, New Delhi V. ITO, Ward-76(4), New Delhi

ITA 5463/DEL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6677 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 28-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: SATYAJIT
• Section: 154; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT AND AND AND AND MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA ITAITA ITA NO NONO NO S SS S . .. . 5463/DEL/2017, 5464/DEL/2017 & 5465/DEL/2017 5463/DEL/2017, 5464/DEL/2017 & 5465/DEL/2017 5463/DEL/2017, 5464/DEL/2017 & 5465/DEL/2017 5463/DEL/2017, 5464/DEL/2017 & 5465/DEL/2017 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR S SS S : : : : 2013 2013 2013 2013 - -- - 14, 2014 14, 2014 14, 2014 14, 2014 - -- - 15 & 2015 15 & 2015 15 & 2015 15 & 2015 - -- - 16 1616 16 M/S M/S M/S M/S TOPLINE BUILDTECH TOPLINE BUILDTECH TOPLINE BUILDTECH TOPLINE BUILDTECH PVT.LTD., PVT.LTD., PVT.LTD., PVT.LTD., FLAT NO.104, FLAT NO.104, FLAT NO.104, FLAT NO.104, LOWER GROUND FLOOR, LOWER GROUND FLOOR, LOWER GROUND FLOOR, LOWER GROUND FLOOR, WESTEND MARG, SAID WESTEND MARG, SAID WESTEND MARG, SAID WESTEND MARG, SAID- -- -UL ULUL UL- -- -AJAIB, AJAIB, AJAIB, AJAIB, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 030. 110 030. 110 030. 110 030. PAN : AABCT5348L. PAN : AABCT5348L. PAN : AABCT5348L. PAN : AABCT5348L. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -76(4), 76(4), 76(4), 76(4), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SATYAJIT, CA. R ESPONDENT BY : SHRI S.S. RANA, CIT - DR. DATE OF HEARING : 25.04.2019 25.04.2019 25.04.2019 25.04.2019 DATE OF PRONOUNCEMENT : 07.05.2019 07.05.2019 07.05.2019 07.05.2019 ORDER ORDER ORDER ORDER PER BENCH PER BENCH PER BENCH PER BENCH : :: :- -- - THESE APPEALS BY THE ASSESSEE FOR THE ASSESSMENT Y EARS 2013- 14 TO 2015-16 ARE DIRECTED AGAINST THE ORDER OF LEA RNED CIT(A)-41, NEW DELHI DATED 21 ST JULY, 2017. 2. IN ALL THESE APPEALS, COMMON GROUNDS HAVE BEEN R AISED. THEREFORE, WE REPRODUCE HEREIN BELOW GROUNDS RAISED FOR ASSESSMENT YEAR 2013-14IN ITA NO.5463/DEL/2017 :- 1. (A) THAT THE AUTHORITIES BELOW WERE NOT JUSTIFI ED TO REJECT APPLICATION U/S 154/155 OF THE INCOME TAX AC T FOR WRONG LEVY OF LATE FEE U/S 234E READ WITH SECTION 2 00A OF THE IT ACT AMOUNTING TO RS.4,82,144/-. ITA-5463 TO 5465/DEL/2017 2 (B) THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED T O SUSTAIN CHARGE OF LATE FEE U/S 234E READ WITH SECTI ON 200A OF IT ACT SINCE THE SECTION 200A HAD COME INTO EFFE CT FROM 01.06.2015 AND LEVY OF LATE FEE U/S 234E WAS NOT PERMISSIBLE U/S 200A OF THE INCOME TAX ACT PRIOR TO 01.06.2015. 2. THAT CHARGE OF LATE FEE U/S 234E IS ILLEGAL AS T HE SAME IS NOT IN CONFORMITY WITH PROVISION IN EXISTENCE AT THE RELEVANT TIME. 3. THAT THE ASSESSEE CRAVES THE RIGHT TO ADD, AMEND , DELETE OR SUBSTITUTE ANY GROUND OF APPEAL. 4. THAT THE ORDER FRAMED IS AGAINST THE FACTS OF TH E CASE AND BAD IN LAW. 3. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE ARGUED AT LENGTH AND HE STATED THAT THE IS SUE IS SQUARELY COVERED BY THE DECISION OF ITAT, DELHI BENCH IN THE CASE OF J.D. MOTOR FINANCE LTD. VIDE ITA NO.2822/DEL/2016. IN THIS CA SE, THE ITAT HELD THAT THE ENABLING PROVISION UNDER SECTION 200A OF T HE ACT FOR LEVY OF PENALTY UNDER SECTION 234E CAME INTO EFFECT FROM 1 ST JUNE, 2015 AND THEREFORE, THE PENALTY CANNOT BE LEVIED FOR THE DEF AULT PRIOR TO THE ABOVE DATE. HE STATED THAT WHILE TAKING THIS VIEW, THE ITAT ALSO RELIED UPON THE DECISION OF HONBLE KARNATAKA HIGH COURT I N THE CASE OF FATHERAJ SINGHVI (2016) 73 TAXMANN.COM 252. 4. LEARNED CIT-DR, ON THE OTHER HAND, STATED THAT I N THIS CASE, THE APPEAL HAS ORIGINATED FROM THE ORDER UNDER SECTION 154. THE ASSESSEE, AGAINST THE LEVY OF PENALTY UNDER SECTION 234E, HAD FILED THE RECTIFICATION PETITION BEFORE THE ASSESSING OFFICER WHICH WAS REJECTED BY HIM AND FROM THE SAID ORDER, THESE APPEALS HAVE COME. THEREFORE, THE PRECISE QUESTION IS WHETHER THERE WAS AN APPARE NT MISTAKE IN THE ORDER OF THE ASSESSING OFFICER LEVYING LATE FEE UND ER SECTION 234E. HE FURTHER STATED THAT HONBLE GUJARAT HIGH COURT IN T HE CASE OF RAJESH KOURANI VS. UNION OF INDIA (2017) 83 TAXMANN.COM 137 HAVE HELD ITA-5463 TO 5465/DEL/2017 3 THAT SECTION 200A IS A MACHINERY PROVISION PROVIDIN G MECHANISM FOR PROCESSING OF STATEMENT OF DEDUCTION OF TAX AT SOUR CE AND FOR MAKING ADJUSTMENT. ON THE OTHER HAND, SECTION 234E IS A C HARGING PROVISION CREATING CHARGE FOR LEVY OF FEE FOR CERTAIN DEFAULT S IN FILING STATEMENTS. THEREFORE, THE LATE FEE UNDER SECTION 234E CAN BE L EVIED EVEN FOR THE PERIOD PRIOR TO COMING INTO OPERATION OF SECTION 20 0A. HE STATED THAT THE ABOVE DECISION OF HONBLE HIGH COURT SQUARELY C OVERS THE CASE OF THE ASSESSEE IN FAVOUR OF THE REVENUE. HE ALTERNAT IVELY SUBMITTED THAT, AT THE MOST, IT IS NOW A DEBATABLE ISSUE BECA USE AT ONE HAND THERE IS A DECISION OF HONBLE GUJARAT HIGH COURT A ND, ON THE OTHER HAND, THERE IS A DECISION OF HONBLE KARNATAKA HIGH COURT AND, ONCE THE ISSUE IS A DEBATABLE ONE, IT IS OUT OF THE PURV IEW OF RECTIFICATION UNDER SECTION 154. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE ENTI RELY AGREE WITH THE CONTENTION OF THE LEARNED DR THAT IT IS A DEBATABLE ISSUE BECAUSE THERE ARE CONTRARY DECISIONS ONE BY HONBLE GUJARAT HIG H COURT IN THE CASE OF RAJESH KOURANI (SUPRA) IN FAVOUR OF THE REVENUE AND THE OTHER OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF FATHERA J SINGHVI (SUPRA) IN FAVOUR OF THE ASSESSEE. IT IS A SETTLED LAW THAT A DEBATABLE ISSUE CANNOT BE RECTIFIED UNDER SECTION 154 OF THE ACT. IN VIEW OF THE ABOVE, WE UPHOLD THE ORDER OF LEARNED CIT(A) AND DISMISS T HE APPEALS FILED BY THE ASSESSEE. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 07.05.2019 . SD/- SD/- (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT VK. ITA-5463 TO 5465/DEL/2017 4 COPY FORWARDED TO: - 1. APPELLANT : M/S TOPLINE BUILDTECH PVT.LTD., M/S TOPLINE BUILDTECH PVT.LTD., M/S TOPLINE BUILDTECH PVT.LTD., M/S TOPLINE BUILDTECH PVT.LTD., FLAT NO.104, LOWER GROUND FLOOR, FLAT NO.104, LOWER GROUND FLOOR, FLAT NO.104, LOWER GROUND FLOOR, FLAT NO.104, LOWER GROUND FLOOR, WESTEND MARG, SAID WESTEND MARG, SAID WESTEND MARG, SAID WESTEND MARG, SAID- -- -UL ULUL UL- -- -AJAIB, AJAIB, AJAIB, AJAIB, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 030. 110 030. 110 030. 110 030. 2. RESPONDENT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -76(4), NEW DELHI. 76(4), NEW DELHI. 76(4), NEW DELHI. 76(4), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR