SHRI HARDIK SHANTILAL SHETH, MUMBAI V. ACIT(TDS)-CPC, GAZIABAD

ITA 6506/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4880 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2015-2016
• Appeal Filed On: 07-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 200A; 73

Judgement Text

, ,, , IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUM BAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER & SHRI RAM LAL NEGI, JUDICIAL MEMBER ./ ITA NO.6506/MUM/2017 / ASSESSMENT YEAR :2015-2016(26QB) SHRI HARDIK SHANTILAL SHETH, OFFICE NO.9, 3 RD FLOOR, CHEMOX HOUSE, 7 BARRACK ROAD, NEAR BOMBAY HOSPITAL, MUMBAI VS. ACIT(TDS)-CPC, GAZIABAD, UTTAR PRADESH ./PAN NO. : AMVPS 6379 M ( /APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI V.C.SHAH, AR /REVENUE BY : SHRI MANOJ KUMAR SINGH, DR / DATE OF HEARING : 07/01/2019 /DATE OF PRONOUNCEMENT 11/02/2019 / O R D E R PER RAJESH KUMAR, AM : THIS APPEAL BY ASSESSEE ARISES OUT OF THE ORDER OF THE CIT(A) 59, MUMBAI, DATED 04.08.2017 WHICH IN TURN HAS ARISEN O UT OF THE ORDER DATED 02.02.20116. PASSED BY THE CPC(TDS), GHAZIABAD U/S. 200A OF THE ACT RELATING TO A.Y. 2015-2016 (26QB). 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE PRE SENT APPEAL IS AGAINST CONFIRMING THE DEMAND OF RS.28,000/- BY TH E CIT(A) AS RAISED BY THE AO BY LEVYING LATE FILING FEES U/S.234E OF THE ACT. 3. FACTS IN BRIEF ARE THAT THE ASSESSEE FILED TDS R ETURN IN FORM NO.26QB FOR THE F.Y.2015-2016 ON 27.03.2015, WHEREA S THE DUE DATE OF FILING OF RETURN WAS 07.11.2014 AND, THUS, THERE WA S A DELAY OF 140 DAYS IN FILING THE RETURN. THE SAID TDS RETURN WAS FILED QU A PART OF TDS DEDUCTED OF RS.2,52,530/- WHICH WAS PAID ALONG WITH THE INTE REST OF RS.22,725/- ON ITA NO.6506/17 2 30.03.2015. ACCORDING TO THE ASSESSEE HE HAS NO FUL L-TIME CA OR ACCOUNTANT TO DEAL WITH THE MATTERS OF TAX AND DEPO SIT OF TDS AND HE IN FACT WAS NOT AWARE ABOUT THE FILING OF TDS RETURNS AND THE DELAY WAS ON ACCOUNT OF BONAFIDE ACT AND THERE WAS NO INTENTIONA L DELAY ON THE PART OF THE ASSESSEE. THUS, THE DELAY ON WHICH THE SAID TDS DEDUCTED WAS SUBSEQUENTLY CANCELLED. THE AO LEVIED LATE FILING F EE U/S.234E OF RS.28,000/- VIDE INTIMATION U/S.200A OF THE ACT DAT ED 02.02.2016. ACCORDING TO THE ASSESSEE THE PENALTY WAS NOT LEVIA BLE AS THE ASSESSEE HAS PAID THE TDS INCLUDING INTEREST OF LATE PAYMENT PRIOR TO THE DATE OF WHICH THE PROVISION OF LEVYING LATE FEE PENALTY WAS APPLICABLE AND MOREOVER THERE IS NO LOSS OF REVENUE AS ALL THE PAY MENTS HAVE BEEN MADE. 4. IN THE APPELLATE PROCEEDINGS, THE CIT(A) CONFIRM ED THE ORDER OF AO BY HOLDING THAT THERE WAS A DELAY ON THE PART OF TH E ASSESSEE AND THE RETURN WAS FILED BY THE ASSESSEE WAS PROCESSED ON 0 2.02.2016 WHICH WAS POST JUNE, 2015 AND, THEREFORE, THE ORDER OF AO IS JUSTIFIED. 5. LD.AR RELIED ON THE FOLLOWING DECISIONS IN SUPPO RT OF HIS ARGUMENTS:- I) SIBIA HEALTHCARE PVT. LTD. VS. DCIT, ITA NO.90/A SR/2015, ORDER DATED 09.06.2015; II) FATHERAJ SINGHVI VS. UOI, 73 TAXMANN.COM 252(KARNATAKA); III) GAJANAN CONSTRUCTIONS VS. DCIT CPC(TDS), [2016 ] 73 TAXMANN.COM 380(PUNE-TRIB); IV) KASH REALTORS (P) LTD. VS. ITO, ITA NO.4199/MUM /2015, ORDER DATED 27.07.2016; ITA NO.6506/17 3 V) ROHIL SINGHAL VS. SHRI WASEEM ARSHAD, ITA NO.03,06&07/AG/2018; VI) CIT VS. VATIKA TOWNSHIP PVT. LTD. (2014) 367 IT R 466 (SC); VII) SUDARSHAN GOYAL VS. DCIT(TDS), ITA NO.442/AGR/ 2017; VIII) KAUR CHAND JAIN VS. DCIT CPC(TDS), GAZIABAD 7 5 TAXMANN.COM 114; IX) MAHARASHTRA CRICKET ASSOCIATION, PUNE VS. DCIT CPC(TDS), GAZIABAD [2016] 74 TAXMANN.COM 6 (PUNE- TRIB); X) HINDUSTAN STEEL LTD. VS. STATE OF ORISSA 83 ITR 26(SC); AND XI) HINDUSTAN COCA COLA BEVERAGES VS. CIT, CIVIL AP PEAL NO.3765 OF 2007(SC). 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED RETURN OF TDS ON 27.03.2015 RELATING TO 2014 WHICH WAS DUE ON 07.11.2014 AND THUS, THERE IS A DELAY OF 140 DAYS. THE ASSESSEE HAS PAID TDS ALONG WITH INTEREST THEREON. NOW, THE ASSESSEE BEFORE US WITH THE ISSUE AS TO WHETHER THE PENALTY U/S.234E OF THE ACT IS LEVIABLE IN RESPECT OF RETURN WHICH WAS FILED ON 27.03.2015 IN VIEW OF THE AMENDMENT MADE IN THE PROVISIONS OF SECTION 200A OF THE ACT W.E.F. 1.6.2015. THE ISSUE BEFORE US WHERE THE TDS RELATES TO PERIOD PRIOR 1.6 .2015 WHETHER THE LATE FEE OF RS. 200/- PER DAY IS TO BE LEVIED FOR LATE F ILING OF TDS STATEMENT U/S 200(3) OF THE ACT. THE IDENTICAL ISSUE HAS BEEN COM E BEFORE THE KARNATKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI VS UNION OF INIDA (2016) 73 TAXMANN.COM252(KAR) AND HELD THAT NO LATE FEE IS TO BE IMPOSED WHERE ITA NO.6506/17 4 THE TDS PERTAINS TO PERIOD PRIOR TO 1.6.2015. ACCOR DINGLY, BY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE KARNATKA HIGH COURT, WE REVERSE THE FINDINGS OF THE CIT(A) AND DIRECT THE AO TO DELETE THE DEMAND FOR LATE FILING FEE U/S.234E OF THE ACT. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 11/02/2019. SD/- ( RAM LAL N EGI ) SD/- (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 11/02/2019 . . /PRAKASH KUMAR MISHRA , SR.PS. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSISTANT REGISTRAR ) , / ITAT, MUMBAI 1. / THE APPELLANT- 2. / THE RESPONDENT- 3. ( ) / THE CIT(A), MUMBAI 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//