RECON DIES & TOOLS PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX CPC-TDS, GHZIABAD

ITA 6657/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8107 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 26-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAMAL MANGAL
• Assessee Lawyers: G C LALKA
• Keywords: TDS
• Section: 234E; 200A; 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTAN T MEMBER ITA NO.6657 & 6658/MUM/2018 ( ASSESSMENT YEAS: 2013-14 ) RECON DIES & TOOLS PVT.LTD. 20/35, SARVODAYA INDL. ESTATE OFF. MAHAKALI CAVES ROAD ANDHERI(EAST) MUMBAI-400 093 VS. DCIT, CPS-TDS GHAZIABAD UTTAR PRADESH PAN/GIR NO. AA A CR2009P APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI G.C.LALKA, AR REVENUE BY SHRI KAMAL MANGAL, JCIT- DR DATE OF HEARING 14 /01 /20 20 DATE OF PR ONOUNCEME NT 22 / 01/2020 / O R D E R PER G.MANJUNATHA (A.M) : THESE TWO APPEALS FILED BY THE ASSESEE ARE DIRECTED AGAINST COMMON ORDER OF THE COMMISSIONER OF INCOME TAX (APP EALS)- 59, MUMBAI, DATED 09/08/2018 FOR THE AY 2013-14. SINCE, THE FACTS ARE IDENTICAL AND ISSUES ARE COMMON, FOR THE SAKE OF CO NVENIENCE, THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED-OFF BY THIS CONSOLIDATED ORDER. 2. THE ASSESSEE, HAS MORE OR LESS RAISED COMMON GR OUNDS OF APPEAL IN BOTH APPEALS. THEREFORE, FOR THE SAKE OF BREVITY GROUNDS OF APPEAL RAISED IN ITA.NO.6657/MUM/2018 ARE REPRODUCE D AS UNDER:- ITA NOS.6657 & 6658/MUM/2018 RECON DIES & TOOLS PVT.LTD. 2 1. THE LD.CIT(A) HAS ERRED IN UPHOLDING THE ORDER O F ASSESSING OFFICER (TDSCPC) IN LEVYING THE LATE FEES U/S 234E OF THE I NCOME TAX ACT, 1961 WITHOUT CONSIDERING THE FACTS IN TOTAL. HE HAS IGNO RED THE PROVISIONS OF THE SECTION 234E, WHICH SPECIFIES THAT THE TDS RETURN HAS TO BE ACCEPTED WITH THE PAYMENT OF THE FEES. THE LEARNED ASSESSING OFFICER IMPOSED THE UNDER MENTIONED LATE FEES U/S 234E FOR A.Y. 2013-14 . 2. THE LD. CIT HAS ALSO ERRED IN LEVYING LATE PAYME NT INTEREST IN Q2 AND THEREBY MAKING THE ADDITION AS UNDER: HE HAS IGNORED OUR SUBMISSION AND THE DECISIONS REL IED UPON. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR WITH DRAW ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF FILING HEARING. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED QUARTERLY TDS RETURNS IN FORM 24Q BEYOND THE DUE DA TE SPECIFIED UNDER THE ACT, FOR TWO QUARTERS OF FINANCIAL YEAR 2 012-13. THE LD. AO HAS PROCESSED TDS RETURNS FILED BY THE ASSESSEE IN FORM 24Q AND LEVIED LATE FILING FEE U/S 234E OF THE I.T.ACT, 1961, FOR LATE FILING OF TDS RETURNS. THE ASSESSEE HAS CHALLENGED LEVY OF LA TE FILING FEE U/S 234E OF THE ACT AND CONTENDED BEFORE THE LD.CIT(A) THAT THE AMENDMENT TO SECTION 200A OF THE ACT, CAME INTO EFF ECT ONLY FROM 01/06/2015 AND THEREFORE, LATE FILING FEE IS NOT A PPLICABLE FOR TDS RETURNS FILED PRIOR TO 01/06/2015. IN THIS REGARD, THE ASSESEE HAS RELIED UPON THE DECISION OF HONBLE KARNATAKA HIGH COURT, IN THE CASE OF FATHERAJ SINGHVI VS UNION OF INDIA (2016) REPORT ED IN 73 TAXMANN.COM 252 AND ALSO, AYAPPA EDUCATIONAL CHARI TABLE TRUST VS DCIT(SUPRA). THE LD.CIT(A) AFTER CONSIDERING RELEVA NT FACTS OF THE CASE AND ALSO, TAKEN NOTE OF AMENDED PROVISIONS OF SECTION 200A AND BY FOLLOWING THE DECISION OF HONBLE GUJARAT HI GH COURT, IN THE CASE OF RAJESH KOURANI VS UNION OF INDIA (2017) REP ORTED 83 TAXMANN.COM 137 HELD THAT THE ARGUMENTS OF THE ASSE SSEE THAT LATE FILING FEE IS NOT APPLICABLE TO TDS RETURNS FILED A ND PROCESSED ON OR BEFORE 01/06/2015 IS UNTENABLE. THE STATUTORY LEVY IS MANDATORILY ATTRACTED, WHEN THE DEFAULT OF FILING THE TDS STATE MENT LATE OCCURS. RATHER, SECTION 234E(3) CASTS AN OBLIGATIONS ON THE DEDUCTOR TO PAY ITA NOS.6657 & 6658/MUM/2018 RECON DIES & TOOLS PVT.LTD. 3 VOLUNTARILY THE LATE FEE. IT DOES NOT SPEAK OF PREV ENTING A LEVY THEREOF. IN ANY EVENT, THE MERE FACT THAT AN AUTOMA TED SYSTEM ACCEPTS A TDS RETURNS WILL NOT DEFEAT THE LEGISLATI VE INTENT. THEREFORE, HE OPINED THAT THERE IS NO MERIT IN ARGU MENTS OF THE ASSESSEE AND ACCORDINGLY, DISMISSED APPEAL FILED BY THE ASSESEE. 4. THE LD. AR FOR THE ASSESEE, AT THE TIME OF HEARI NG SUBMITTED THAT THIS ISSUE IS SQUARELY COVERED, IN FAVOUR OF T HE ASSESEE BY THE DECISION OF HONBLE KARNATAKA HIGH COURT, IN THE CA SE OF FATHERAJ SINGHVI VS UNION OF INDIA (SUPRA) AND ALSO, THE DE CISION OF ITAT, MUMBAI IN THE CASE OF MARUDHAR FOODS PVT.LTD. VS DC IT ITA NO. 7581/MUM/2016, WHERE THE ISSUE HAS BEEN CONSIDERED, IN LIGHT OF AMENDED PROVISIONS OF SECTION 200A BY THE FINANCE, ACT, 2015 WITH EFFECT FROM 01/06/2015 AND HELD THAT AMENDMENT TO S ECTION 200A PROVIDING FOR LEVY OF FEE U/S. 234E OF THE ACT, WOU LD APPLY PROSPECTIVELY TO A PERIOD FOLLOWING AFTER 01/06/201 5 5. THE LD. DR, ON THE OTHER HAND, STRONGLY SUPPORTI NG ORDER OF THE LD.CIT(A) SUBMITTED THAT HONBLE GUJARAT HIGH COUR T HAD CONSIDERED THIS VERY MATTER IN RAJESH KOURANI VS UNION OF IND IA (SUPRA), WHERE IT HAS BEEN HELD THAT WHEN SECTION 234E HAS ALREADY CREATED A CHARGE FOR A LEVYING FEE THAT WOULD, THEREAFTER NOT BEEN NECESSARY TO HAVE YET ANOTHER PROVISION CREATING THE SAME CHARGE . THE LD.CIT(A), WHILE DECIDING THE ISSUE HAS FOLLOWED THE DECISION OF HONBLE GUJARAT HIGH COURT, WHICH IS EXACTLY ON SIMILAR ISSUE AND HENCE, THERE IS NO REASON TO INTERFERE WITH THE FINDINGS OF THE LD.CIT (A). 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIE S BELOW. IT IS AN ITA NOS.6657 & 6658/MUM/2018 RECON DIES & TOOLS PVT.LTD. 4 ADMITTED FACT THAT THERE ARE DIVERGENT DECISIONS, O N THE VERY SAME ISSUE, ONE BY THE HONBLE KARNATAKA HIGH COURT, WHI CH IS IN FAVOUR OF THE ASSESSEE AND ANOTHER BY HONBLE GUJARAT HIGH CO URT, WHICH IS IN FAVOR OF THE REVENUE. FURTHER, ITAT, MUMBAI, THIRD MEMBER DECISION, IN THE CASE OF EMSONS EXIM PVT.LTD. VS IT O (TDS) HAS DECIDED THE ISSUE IN FAVOR OF THE ASSESSEE AND HELD THAT LEVY OF FEE U/S 200A(1)(C) WOULD APPLY PROSPECTIVELY TO ANY PER IOD FOLLOWING AFTER 01/06/2015. FURTHER, THE ITAT, MUMBAI, IN THE CASE OF MARUDHAR FOODS PVT.LTD. VS DCIT IN ITA NO. 7581/MUM /2016 HAD HELD THAT PRIOR TO THE AMENDMENT TO SECTION 200A BY THE FINANCE ACT, 2015 WITH EFFECT FROM 01/06/2015. THE LD. AO H AD NO AUTHORITY IN LAW TO LEVY FEE U/S 234E, WHILE PROCESSING THE S TATEMENTS OF TDS U/S 200A. A SIMILAR VIEW HAS BEEN EXPRESSED BY THE TRIBUNAL, IN THE CASE OF BATHIJA INTERNATIONAL . VS DCIT IN ITA NO . 652/MUM/2016 AND HELD THAT PRIOR TO 01/06/2015. THE LD. AO IS N OT EMPOWERED TO LEVY LATE FEE PRESCRIBED U/S 234E OF THE ACT. THE I TAT, VISHAKHAPATNAM BENCH, IN THE CASE OF NAVEEN KUMAR HANJARIMAL IN ITA NO. 7 & 8 /VIZAG/2016 HAD CONSIDERED AN IDENTIC AL ISSUE AND HELD THAT BEFORE INSERTION OF SUB-CLAUSE (C) IN TO SECTION 200A OF THE ACT, BY THE FINANCE ACT, 2015 W.E.F. 01/06/2015, TH E LATE FEE PRESCRIBED U/S 234E CANNOT BE LEVIED FOR BELATED FI LING OF TDS STATEMENTS U/S 200(3) OF THE ACT, WHILE ISSUING IN TIMATION U/S 200A OF THE ACT FOR PROCESSING TDS STATEMENTS, FILED AND PROCESSED PRIOR TO 01/06/2015. THE SUM AND SUBSTANCE OF THE RATIOS LAID DOWN BY ABOVE JUDGMENTS IS THAT ALTHOUGH, THE PROVISION OF SECTION 234E OF THE ACT, PROVIDING FOR LEVY OF FEE, IN CASE OF DEL AYED FILING OF STATEMENT OF TDS WAS THERE IN THE STATUTE BOOK W.E .F. 01/07/2002, BUT, SINCE NO CORRESPONDING AMENDMENT WAS MADE TO P ROVISION OF SECTION 200A OF THE I.T.ACT, 1961, BEFORE INSERTIO N OF SUB-CLAUSE (C) ITA NOS.6657 & 6658/MUM/2018 RECON DIES & TOOLS PVT.LTD. 5 TO SECTION 200A BY THE FINANCE ACT, 2015 W.E.F. 01/ 06/2015, THE LATE FEE PRESCRIBED U/S 234E CANNOT BE LEVIED, WHILE P ROCESSING TDS STATEMENTS FILED AND PROCESSED BEFORE 01/06/2015. IN THIS CASE, ON PERUSAL OF FACTS, WE FIND THAT THE LD. AO HAS LEVIE D LATE FEE U/S 234E, IN RESPECT OF TDS STATEMENTS FILED IN FORM 24Q FOR THE QUARTER ENDING 15/10/2002 AND 30/03/2013, WHICH IS PRIOR TO 01/0 6/2015. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE L D. AO HAS ERRED IN LEVYING LATE FEE U/S 234E OF THE ACT, THE LD.CIT (A) WITHOUT APPRECIATING THE FACTS HAS SIMPLY AFFIRMED THE FIND INGS OF THE LD. AO. HENCE, WE DIRECT THE LD. AO TO DELETE LATE FEE LEVI ED U/S 234E OF THE ACT, FOR BELATED FILING OF TDS STATEMENTS. 7. IN THE RESULT, BOTH APPEALS FILED BY THE ASSESSE E ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22/01/ 2020 SD/- (SAKTIJIT DEY) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 22 /01/2020 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. 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//