SHANTILAL CHIMANLAL SHETH, MUMBAI V. ACIT (TDS) - CPC , GHAZIABAD

ITA 6447/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8321 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2015-2016
• Appeal Filed On: 08-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 234E; 200A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI BEFORE SHRI PAWAN SINGH (JM) & SHRI S.RIFAUR RAHMA N(A.M.) ITA NO. 6447/MUM/2018(ASSESSMENT YEAR : 2015-16) SHANTILAL CHIMANLAL SHETH OFFICE NO.9, 3 RD FLOOR, CHENMOX HOUSE, BARRACK ROAD, BOMBAY HOSPITAL LANE, MUMBAI 400 020 PAN : AAOPS0258F VS ACIT(TDS)- CPCP- GAZIABAD APPELLANT RESPONDEDNT APPELLANT BY NONE RESPONDENT BY SHRI VINOD KUMAR DATE OF HEARING 14-01-2020 DATE OF PRONOUNCEMENT 14-01-2020 O R D E R PER PAWAN SINGH, JM : 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF CIT(A)-16, MUMBAI DATED 04-02-2018 FOR ASSESSMENT YEAR 2015-16 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL: - L(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX, APPEALS [CIT (A )] ERRED IN CONFIRMING THE DEMAND OF RS.27,800/- BEING LATE FIL ING FEES U/S 234E OF INCOME TAX ACT THOUGH THE TAX DEDUCTED AT SOURCE WA S PAID IN TIME WHICH WAS PAID INCLUDING INTEREST ON LATE FILING AN D THEN THE PROVISIONS OF LEVYING OF LATE FEES WAS NOT APPLICABLE. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX, APPEALS [CIT (A )] ERRED IN ACKNOWLEDGING THE FACT THAT THE STATUTORY PROVISION OF SECTION 200 A WAS INSERTED BY FINANCE ACT 2015 W.E.F. 01/06/15 WHICH WAS NOT RETROSPECTIVE IN NATURE AND HENCE THE TDS STATEMENTS FILED PRIOR TO 01/06/15 DID NOT 2 ITA 6447/MUM/2018 ATTRACT ANY LATE FEE CHARGES UNDER SECTION 234E OF THE ACT IN AN INTIMATION ISSUED UNDER SECTION 200 A OF THE ACT. (C) THE LEARNED CIT(A) FAILED TO APPRECIATE THA T THERE WAS MERELY A TECHNICAL BREACH AND HENCE THE APPELLANT SHOULD NOT BE PUNISHED AS IS HELD IN VARIOUS JUDICIAL PRONOUNCEMENTS. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A) ERRED IN NOT GIVING ANY SPE CIFIC DIRECTIONS, TO ADJUST THE PAYMENT OF RS.22,730/-AS INTENDED TO BE ADJUSTED AS PER SPECIFIC PAYMENT PER CHALLAN WHEREBY IT WAS PAID. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE BOOKED A PROPERTY UNDER CONSTRUCTION AND MADE A PART PAYMENT OF RS.2, 52,53,000/- TO THE SELLER AND PAID TDS OF RS.2,52,530/- ALONG WITH INTEREST OF RS.22,730/-. THE ASSESSEE FILED TDS RETURN IN FORM 26-QB FOR FINANCIAL YEAR 2014-15 ON 26-03-2015, AGAINST THE D UE DATE FOR FILING RETURN ON 07-11-2014. THUS, THERE WAS APPAR ENTLY A DELAY OF 139 DAYS. THE ASSESSEE MADE TDS OF RS.2,52,530/- T OGETHER WITH INTEREST ON 26-03-2015. ACCORDINGLY, THE ASSESSEE PAID THE TDS WITH INTEREST. THE ACIT, CENTRAL PROCESSING CELL ( TDS), VIDE HIS ORDER DATED 02-02-2016, WHILE PROCESSING THE TDS FO RM 26QB, APPLIED THE PROVISIONS OF SECTION 200A LEVIED A LAT E FEES OF RS.27,800/- UNDER SECTION 234. ON APPEAL BEFORE CI T(A), THE ACTION OF AO /CPCT WAS AFFIRMED. THUS, FURTHER AGGRIEVED, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 3 ITA 6447/MUM/2018 3. NONE APPEARED ON BEHALF OF THE ASSESSEE, DESPITE T HE SERVICE OF NOTICE OF HEARING OF THE APPEAL. EVEN NO APPLICATIO N FOR ADJOURNMENT WAS FILED ON BEHALF OF ASSESSEE, THUS, WE LEFT NO OPTION EXCEPT TO HEAR THE SUBMISSIONS OF THE LD. DEPARTMEN TAL REPRESENTATIVE (DR) FOR THE REVENUE AND TO DECIDE THE CASE ON THE BASIS OF MATERIAL ON RECORD. WE HAVE HEARD THE SUBMISSION OF THE LD. DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. THE LD DR SUPPORTED THE ORDER OF LOWER AUTHORITIES. 4. THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF L OWER AUTHORITIES. THE LD. DR SUBMITS THAT THE LD. CIT(A ) HAS ELABORATELY DISCUSSED THE APPLICABILITY OF SECTION 234E AS WELL AS SECTION 200A OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISP UTE THAT THE ASSESSEE MADE TDS ON A BOOKING WITH THE SELLER AND MADE PART PAYMENT OF PROPERTY AND MADE TDS OF RS.2,52,530/- A ND PAID INTEREST WHEN RETURN WAS FILED ON 26-02-2015. ADMI TTEDLY, TDS WAS DEDUCTED PRIOR TO 01-06-2015. THE HON BLE KARNATAKA HIGH COURT IN FATHERAJ SINGHVI VS UOI REPORTED VIZ (73 TAXMANN.COM 252 ), WHEREIN IT WAS HELD THAT THE AMENDMENT IN SECTION 200A HAS 4 ITA 6447/MUM/2018 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 WITH OUT AUTHORITY OF LAW. SIMILAR VIEW WAS TAKEN BY THIS BENCH (BY SAME COMBINATION) IN VENUS ELECTRONICS AND CONTROLS PVT. LTD VS ITO (ITA NO. 5073/MUM/2018 DATE 18.12.2019). IN VIEW OF THE AFO RESAID DISCUSSIONS, W E FIND THAT NO LATE FEES WERE LEVIABLE ON THE ASSES SEE; THEREFORE, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14- 01-2020. SD/- SD/- (S.RIFAUR RAHMAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER MUMBAI, DT : 14 TH JANUARY, 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI