M/s. Astir Impex (P) Ltd., Guwahati V. Income Tax Officer, TDS-2, Guwahati

ITA 64/GTY/2021

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 2706 (ITAT-GUWAHATI)
• Duration Of Justice: 2 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-02-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 21-12-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY JHA
• Assessee Lawyers: D.K. BISWAS
• Keywords: Period of limitation; TDS; Rectification of order; Time period of passing order
• Section: 234E; 200A; 154; 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, GUWAHATI BEFORE DR. MANISH BORAD, HON’BLE ACCOUNTANT MEMBER AND SHRI SONJOY SARMA, HON’BLE JUDICIAL MEMBER ITA No. 64/GTY/2021 Assessment Year: 2013-14 M/s. Astir Impex Pvt. Ltd. PAN: AAECA 2727 M Vs. Income Tax Officer, TDS-2, Guwahati (Appellant) (Respondent) Present for: Appellant by : Shri D.K. Biswas, Advocate Respondent by : Shri Sanjay Jha, JCIT Date of Hearing : 29.02.2024 Date of Pronouncement : 05.03.2024 O R D E R PER SONJOY SARMA, JM: This appeal of the assessee for the assessment year 2013-14 is directed against the order dated 25.11.2021 passed by the ld. Commissioner of Income-tax (Appeals), Kolkata-21 [hereinafter referred to as ‘the ld. CIT(A)’]. 2. Brief facts of the case are that the assessee has received letter dated 05.08.2019 regarding outstanding demand of late filing levy u/s 234E and late payment of interest u/s 201(1A) of the Act amounting to Rs. 1,48,175/- for the financial year 2012-13 relevant to assessment year 2013-14. In response to the same appellate company requested before the assessing officer, TDS-2, Guwahati for rectification of mistakes u/s 154 of the I.T. Act regarding levy of fees for default in furnishing statements within the time as prescribed u/s 200(3)/206(3)(C) of the Act for the assessment year in question. However, the ld. AO rejected the petition filed by the assessee. ITA No.64/GTY/2021 M/s. Astir Impex Pvt. Ltd. A.Y. 2013-14 2 3. Aggrieved by the above order, assessee went into appeal before the ld. CIT(A) where the appeal of the assessee was dismissed. 4. Dissatisfied with the above order, assessee is in appeal before this Tribunal raising 2 grounds of appeal stating that the impugned order passed by ld. CIT(A) is not correct. Since section 234E of the I.T. Act in respect of late filing fee is having prospective effect from 01.06.2015 i.e. from financial year 2015-16. Therefore, the levying of late filing fee upon the assessee does not attract in the case of assessee which falls under financial year 2012-13 and not come under the purview of section 234E of the Act since it is applicable with prospective effect from 01.06.2015. 5. We after hearing the rival submissions of the parties and perused the material available on record find that the issue whether clause (c) of section 200A(1), as substituted by Finance Act, 2015, w.e.f. 01.06.2015, whereby the A.O. was enabled to compute the fee under section 234E of the Act while processing of statement of tax deducted at source which is prospective in nature has came up for adjudication before the Hon'ble High Courts of various States. The first decision was rendered by the Hon'ble Karnataka High Court in Fatheraj Singhvi v/s Union of India, [2016] 73 taxmann.com 252 (Kar.), whereby the Hon'ble High Court held that such an amendment is prospective in nature and thus intimation issued under section 200A of the Act for computation and intimation of payment of fee under section 234E ITA No.64/GTY/2021 M/s. Astir Impex Pvt. Ltd. A.Y. 2013-14 3 of the Act relating to the period of tax deduction prior to 01.06.2015 was not maintainable. 6. However, from the facts of the case we find that assessee has not challenged the original order passed u/s 200A of the Act. A perusal of the intimation in relation with outstanding TDS demand dated 05.08.2019 notice that all demands relating to assessment year 2012-13 to 2017-18 which some are prior period to 01.06.2015 and some are even after 01.06.2015. The assessee in the present case has not filed any appeal against the said original order/intimation passed u/s 200A of the Act. The assessee simply challenged the demand issued by ITO, TDS-2, Guwahati by which rejected the prayer of the assessee for rectification of mistake as prayed u/s 154 of the Act. It is pertinent to mention here that neither assessee has challenged the demand raised u/s 234E of the Act against the intimation dated 05.08.2019 by way of filing the appeal against the original order before the authority nor assessee has filed any rectification application u/s 154 of the Act against the order passed u/s 200A of the Act. Hence assessee failed to point out any mistake has occurred in the order passed u/s 154 of the Act has compared to the original order passed u/s 200A of the Act. In fact no mistake apparent on record has been alleged in the said order by the assessee. 7. The ld. counsel for the assessee, though, has relied upon certain decisions of the Coordinate Benches of the Tribunal to contend that an appeal, against order passed u/s 154 of the Act, can be filed within the limitation period as due from the date of ITA No.64/GTY/2021 M/s. Astir Impex Pvt. Ltd. A.Y. 2013-14 4 order passed u/s 154 of the Act. There is no dispute relating to the aforesaid proposition. If the assessee is aggrieved by an order passed u/s 154 of the Act it will be entitled to file appeal against the said order. However, the assessee must bring out from the record as to what prejudice has been caused to the assessee in the order passed u/s 154 of the Act when compared with the original order which has been amended or rectified. Neither any rectification has been done by the Assessing Officer to the original order nor any cause of action has accrued to the assessee by getting up-to-date calculation of the demand. In view of this, there is no merit in the appeal of the assessee. At this stage the Ld. Counsel for the assessee submits that the original intimation/order passed u/s 200A was not served/available to the assessee. We are not convinced with the above submission of the Ld. Counsel. The assessee will have to file an appropriate appeal against the order u/s 200A of the Act explaining the cause of delay in the application/hearing in respect of the appeal, if any, the assessee is contemplating to file. However, it is directed that the time consumed by the assessee in prosecuting the present litigation i.e. from the date of impugned order dated (25.11.2021) till the receipt of this order will not be counted for the purpose counting the limitation period, if the assessee chooses to file the appeal against the original order u/s 200A of the Act. Rest of the delay period, the assessee will have to explain as per law. ITA No.64/GTY/2021 M/s. Astir Impex Pvt. Ltd. A.Y. 2013-14 5 8. We, therefore, do not find any merit in the appeal filed by the assessee. The same is hereby dismissed subject to our observation made above. 9. In the result, the appeal of the assessee is dismissed. Order pronounced in the open court on 05.03.2024 Sd/- Sd/- (Dr. MANISH BORAD) (SONJOY SARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Kolkata, Dated: 05.03.2024 Biswajit, Sr. P.S. Copy to: 1. The Appellant: M/s. Astir Impex Pvt. Ltd., Pub Boragaon, Gorsukh Charali, Guwahati-781035. 2. The Respondent: ITO, TDS-2, Guwahati. 3. The CIT, 4. The CIT (A) 5. The DR //True Copy// [ By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata