BATHIJA INTERNATIONAL, MUMBAI V. DCIT CPC TDS, MUMBAI

ITA 652/MUM/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6537 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 09-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Assessee Lawyers: M P SHARMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE JUSTICE SHRI P.P. BHATT, PRESIDENT AND SHRI G.S. PANNU, VICE PRESIDENT ITA NO. 652/MUM/2016 : A.Y : 2013 - 14 (Q2) M/S. BATHIJA INTERNATIONAL 3, K.K. MANSION, 289/91, NAGDEVI STREET, CRAWFORD MARKET, MUMBAI 400 003. PAN : AAAFB1379F (APPELLANT) VS. DCIT CPC TDS, MUMBAI (RESPONDENT) APPELLANT BY : SHRI M.P. SHARMA RESPONDENT BY : SHRI SATISHCHANDRA RAJORE DATE OF HEARING : 24/10/2018 DATE OF PRONOUNCEMENT : 18 / 0 1/201 9 O R D E R PER G.S. PANNU , V ICE P RESIDENT : THIS APPEAL IS DIRECTED AGAINST THE ORDER OF THE CIT(A) , MUMBAI - 59 DATED 06.04.2015 UPHOLDING THE LEVY OF FEES OF RS.28,100/ - UNDER SECTION 234E OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) IMPOSE D BY THE ASSESSING OFFICER WHILE PROCESSING THE TDS STATEMENT OF FINANCIAL YEAR 2012 - 13. 2. THE APPELLANT FILED THE QUARTERLY TDS STATEMENT FOR Q2 OF FINANCIAL YEAR 2012 - 13 ON 7 TH JUNE, 2013 AS AGAINST THE DUE DATE OF 15 TH OCTOBER, 2 ITA NO. 652/MUM/2016 M/S. BATHIJA INTERNATIONAL 2012. THE ASSESSING OFFICER NOTICED THIS DELAY OF 235 DAYS WHILE PROCESSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT, AND IMPOSED LATE FILING FEE UNDER SECTION 234E OF THE ACT OF RS.28,100/ - . THE ASSESSEE HAD ASSAILED THE IMPOSITION OF THE FEE BEFORE THE INCOME - TAX A UTHORITIES UNSUCCESSFULLY AND IS NOW IN APPEAL BEFORE US. 3. ONE OF THE PERTINENT POINTS RAISED BY THE APPELLANT IS THAT WHILE PROCESSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT, THE ASSESSING OFFICER IS NOT EMPOWERED TO IMPOSE THE FEE PRESCRIBED IN SECTION 234E OF THE ACT FOR LATE FURNISHING OF THE STATEMENT PRIOR TO 01.06.2015. SECTION 200A(1) OF THE ACT HAS BEEN AMENDED BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015, INTER - ALIA , PROVIDING FOR LEVY OF FEE PRESCRIBED IN SECTION 234E OF THE ACT. THUS , IT IS CONTENDED THAT LEVY OF FEE AS PER SECTION 234E OF THE ACT IS ILLEGAL AND WRONG IN THE PRESENT CASE. 4. THE AFORESAID PLEA HAS BEEN OPPOSED BY THE REVENUE BEFORE US, AND THE L D. D .R POINTED OUT THAT THE CIT(A) HAS UPHELD THE IMPOSITION OF FEE BY RE LYING ON THE JUDGEMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA DATED 9 TH FEBRUARY, 2015. 5. BEFORE US, THE LD. REPRESENTATIVE FOR THE APPELLANT RELIED UPON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. DHAMI FINANCE LTD. VS. DCIT, ITA NO. 347/MUM/2016 DATED 10.11.2017 IN SUPPORT OF HIS STAND. 3 ITA NO. 652/MUM/2016 M/S. BATHIJA INTERNATIONAL 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. THE LATE FEE ENVISAGED IN SECTION 234E OF THE ACT HAS BEEN CHARGED BY THE ASSESSING OFFICE R IN THIS CASE WHILE PROCESSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT ON 14.06.2013, WHICH IS INDEED PRIOR TO 01.06.2015. OSTENSIBLY, A PERUSAL OF BARE PROVISIONS OF SECTION 200A OF THE ACT SHOW THAT PRIOR TO 01.06.2015, IT DID NOT EMPOWER THE A SSESSING OFFICER TO LEVY THE FEE PRESCRIBED IN SECTION 234E OF THE ACT, WHILE PROCESSING THE STATEMENT OF TDS. THUS, THE STAND OF THE ASSESSEE IS BORNE OUT OF THE BARE PROVISIONS OF THE ACT , AS IT STOOD AT THE RELEVANT POINT OF TIME. OUR COORDINATE BENCH IN THE CASE OF M/S. DHAMI FINANCE LTD. (SUPRA) HAS ALSO TAKEN A SIMILAR VIEW. IN FACT, THE MUMBAI BENCH HAS NOTED AND FOLLOWED AN EARLIER DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF GAJANAN CONSTRUCTIONS AND OTHERS, ITA NOS. 1292 & 1293/PN/ 2015 DATED 23.09.2016 . IN SO FAR AS THE RELIANCE PLACED BY THE CIT(A) ON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IS CONCERNED, THE SAME IS QUITE MISPLACED. IN THE SAID CASE, THE HON'BLE HIGH COURT HAS MERELY UPHELD THE CONSTITUTIONAL VALIDITY OF SE CTION 234E OF THE ACT ; AND, A S HAS BEEN RIGHTLY NOTED BY THE PUNE BENCH, THE HON'BLE BOMBAY HIGH COURT WAS NOT DEALING WITH THE ISSUE AS TO WHETHER PRIOR TO 01.06.2015, WHILE PROCESSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT, THE LATE FEE ENVISAGE D UNDER SECTION 234E OF THE ACT, COULD BE LEVIED OR NOT. THUS, RELIANCE PLACED BY THE LD. D.R. ON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA (SUPRA) IS MISPLACED, AS IT HAS BEEN RENDERED IN AN ALTOGETHER DIFFERENT CON TEXT. 7. THUS, WE DELETE THE LEVY OF FEE CHARGED BY THE ASSESSING OFFICER UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT, AS BEING BEREFT OF JURISDICTION AT THE RELEVANT POINT OF TIME. 4 ITA NO. 652/MUM/2016 M/S. BATHIJA INTERNATIONAL 8. ACCORDINGLY, THE ASSESSEE SUCCEEDS IN THIS APPEAL. ORDER PRONOUNCED IN THE OPEN COURT ON 1 8 T H JANUARY , 201 9 . SD/ - SD/ - ( JUSTICE P.P BHATT ) PRESIDENT ( G.S. PANNU ) VICE PRESIDENT MUMBAI, DATE : 1 8 T H JANUARY , 201 9 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, B BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI