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

ITA 6507/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6991 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 07-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHARTI SINGH
• Assessee Lawyers: V C SHAH

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN, JM & HONBLE SH. G. MANJUNATHA, A M ./ I.T.A. NO . 6507 /MUM/201 7 ( / ASSESSMENT YEAR: 2015 - 16 ) SHRI BHAVESH SHANTILAL SHETH, OFFICE NO. 9, 3 RD FLOOR, CHEMOX HOUSE, 7 BARRACK ROAD, NEAR BOMBAY HOSPITAL, MUMBAI - 400 020. / VS. A CIT TDS, CPC GHAZIABAD, U.P. ./ ./ PAN NO. A MVPS6373B ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI V. C. SHAH , AR / RESPONDENTBY : MS. BHARTI SINGH , DR / DATE OF HEARING : 07 .01 .201 9 / DATE OF PRONOUNCEMENT : 08.01.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 59, MUMBAI DATED 04.08 .2017 F OR AY 20 1 5 - 16 . 2 I.T.A. NO. 6507 /MUM/201 7 SHRI BHAVESH SHANTILAL SHETH 2. THE FACTS OF THE PRESENT CASE AS MENTIONED IN THE ORDER OF REVENUE ARE NOT IN DISPUTE. AS PER THE FACTUAL POSITION, RS. 28,600/ - WAS THE FEE LEVIED FOR THE DELAY IN FURNISHING THE STATEMENT U/S 200(3) OF THE ACT. IT WAS CLAIMED BY THE ASSESSEE THAT THE TDS AMOUNT, INCLUDING INTEREST ON LATE PAYMENT, WERE FOR A PERIOD PRIOR TO THE DATE ON WHICH PROVISIONS OF LEVY OF LATE FEES WAS MADE APPLICABLE. AS PER SUBMISSION OF LD. AR, THE AMENDMENT MADE U/S 200A OF THE ACT HAD PROSPECTIVE EFFECT AND HENCE, NO COMPUTATION OF LATE FEE COULD BE MADE FOR TAX DEDUCTED AT SOURCE FOR A PERIOD PRIOR TO 1 ST JUNE 2015 AND THUS THE ORDER PASSED BY THE REVENUE DEMANDING LATE FEE WAS NOT LEGALLY VALID. 3. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 4. AFTER HAVING HEARD THE COUNSELS FOR BOTH THE PARTIES, DOCUMENTS PLACED ON RECORD, JUDGMENTS CITED BY THE PARTIES AND THE ORDERS PASSED BY THE REVE NUE AUTHORITIES, WE FIND THAT LD. CIT(A) WHILE DECIDING THIS ISSUE HAD HELD THAT BY VIRTUE OF FINANCE ACT 2012 W.E.F 01.07.12, SECTION 234E WAS INSERTED IN 3 I.T.A. NO. 6507 /MUM/201 7 SHRI BHAVESH SHANTILAL SHETH CHAPTER XVII - G OF THE ACT. ACCORDING TO THE SAID PROVISIONS, A PERSON WHO FAILS TO DELIVER A STATEME NT WITHIN THE TIME PRESCRIBED IN SUB SECTION 3 OF SECTION 200, SHALL BE LIABLE, BY WAY OF FEE, A SUM OF RS. 200 FOR EVERYDAY DURING WHICH THE FAILURE CONTINUES. IT WAS FURTHER HELD THAT THOUGH THERE WAS NO ENABLING AUTHORITY VESTED FOR RAISING AND DEMANDIN G THE LATE FEES THROUGH AN INTIMATION U/S 200A OF THE ACT, BUT THE FEE FOR DEFAULT IN NOT TIMELY FURNISHING THE TDS STATEMENT HAD ALREADY EXISTED IN THE FORM OF SECTION 234E OF THE ACT W.E.F 01.07.12. THEREFORE, THE LEVY OF LATE FEE U/S 234E OF THE ACT CAN NOT BE ASSAILED BY THE ASSESSEE. 5. WE HAVE ALSO GONE THROUGH THE JUDGMENTS IN THE CASE OF ROHIL SINGHAL VRS. SHRI WASSEEM ARSHAD (ITAT AGRA - ITA NO. 03,06 & 07/AG/2018), DHARAM DEEP PUBLIC SCHOOL VRS. DCIT (ITAT DELHI ITA NO. 3112/DEL/16), SIBIA HEALTC ARE PVT. LTD. VRS. DCIT TAXMANN.COM 70, CIT VRS. VATIKA TOWNSHIP PVT. LTD. (2014) 367 ITR 466 (SC) AND SUDARSHAN GOYAL VRS. DCIT (TDS), ITA NO. 442/AGR/2017, ETC. 4 I.T.A. NO. 6507 /MUM/201 7 SHRI BHAVESH SHANTILAL SHETH 6. AFTER HAVING METICULOUSLY GONE THROUGH THE LEGAL PROPOSITIONS AS PUT FORTH BY BOTH THE PA RTIES AND WHILE RELYING UPON THE JUDGMENTS CITED (SUPRA), WE ARE ALSO OF THE VIEW THAT SECTION 200A WHICH WAS BROUGHT W.E.F. 01.06.15 IS AN ENABLING PROVISION WHICH EMPOWERS THE AO TO DETERMINE FEE U/S 234E OF THE ACT AND IS PROSPECTIVE IN NATURE . HENCE NO COMPUTATION OF FEE FOR DEMAND OR INTIMATION FOR FEE U/S 234E COULD BE MADE FOR TDS DEDUCTED FOR ASSESSMENT YEAR PRIOR TO 01.06.15. MOREOVER, NO CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD BEFORE US IN ORDER TO CONTROVERT OR REBUT THE LEGAL PROPOSITION SET OUT IN THE ABOVE CITED JUDGMENTS (SUPRA). THUS, KEEPING IN VIEW THE ABOVE DISCUSSION AND ALSO BEARING IN MIND, THE ENTIRETY OF THE FACT AND SETTLED LEGAL POSITION , THE IMPUGNED LEVY OF FEE U/S 234E OF THE ACT IN THE PRESENT CASE IS UNSUSTAINABLE IN L AW. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED LEVY OF FEE U/S 234E OF THE ACT. 5 I.T.A. NO. 6507 /MUM/201 7 SHRI BHAVESH SHANTILAL SHETH 7 . IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JAN, 2019 . SD/ - SD/ - ( G. MANJUNATHA ) (SANDEEP GOSAIN) / A COUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 08 . 01 .201 9 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI