ORIGIN LOGISTICS PVT. LTD., MUMBAI V. ITO (TDS) - 2(1)(1), MUMBAI

ITA 6898/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0327 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 03-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUMAR PADMA
• Assessee Lawyers: PRIYA SHINDE
• Keywords: TDS
• Section: 234E; 200A; 201; 13; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , ACCOUNTANT MEMBER ITA NO. 6898 / MUM . /201 8 ( ASSESSMENT YEAR : 20 1 3 14 ) ITA NO.6899/MUM./2018 ( ASSESSMENT YEAR : 201 4 15 ) ITA NO.6900/MUM./2018 ( ASSESSMENT YEAR : 201 5 16 ) ORIGIN LOGISTICS PVT. LTD. 610, 6 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING CHARNI ROAD (W), MUMBAI 400 004 PAN AAACO9569K . APPELLANT V/S INCOME TAX OFFICER (TDS) WARD 2(1)(1), MUMBAI . RESPONDENT ASSESSEE BY : MS. PRIYA SHINDE REVENUE BY : SHRI KUMAR PADMAPANI BORA DATE OF HEARING 19.12.2019 DATE OF ORDER 30.12.2019 O R D E R PER SAKTIJIT DEY. J.M. A FORESAID APPEAL S HAVE BEEN FILED BY THE ASSESSEE CHALLENGING THREE SEPARATE ORDERS , ALL DATED 21 ST SEPTEMBER 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 60 , MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 201 3 14 . 2 P.B. CONSTRUCTION COMPANY 2. THE ONLY COMMON ISSUE IN DISPUTE IN ALL THESE APPEALS RELATES TO LEVY OF LATE FILING FEE UNDER SECTION 234E OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT') FOR DIFFERENT QUARTERS OF PREVIOUS YEAR 2012 13 CORRESPONDING TO THE ASSESSMENT YEAR 2013 14. 3. BRIEF FACTS ARE, THE ASSESSEE IS A COMPANY AND IS ENGAGE D IN PROVIDING TRANSPORT SERVICE. THE ASSESSEE FURNISHED ITS TDS RETURNS ELECTRONICALLY FOR DIFFERENT QUARTERS OF THE FINANCIAL YEAR 2012 13 AS PROVIDED UNDER SECTION 200(3) OF THE ACT BELATEDLY. WHILE PROCESSING THE TDS RETURNS UNDER SECTION 200A OF THE A CT , THE CENTRAL PROCESSING CENTRE (CPC) CHARGED FEE UNDER SECTION 234E OF THE ACT DUE TO LATE FILING OF TDS STATEMENTS / RETURNS. CHALLENGING THE LEVY OF LATE F ILING FEE, THE ASSESSEE FILED APPLICATION UNDER SECTION 154 OF THE ACT BEFORE THE INCOME TAX OFF ICER (TDS) SEEKING RECTIFICATION. HOWEVER, THE CONCERNED AUTHORITY REFERRING TO THE PROVISIONS OF SECTION 234E OF THE ACT UPHELD THE LEVY OF LATE FILING FEE , THEREBY , REJECTING THE APPLICATION FILED FOR RECTIFICATION. THE AFORESAID DECISION OF THE ASSESSIN G OFFICER WAS CHALLENGED BY TH E ASSESSEE BEFORE LEARNED COMMISSIONER (APPEALS). HOWEVER, LEARNED COMMISSIONER (APPEALS) ALSO UPHELD THE DECISION OF THE ASSESSING OFFICER BY HOLDING THAT THE ISSUE RAISED BY THE ASSESSEE BEING DEBATABLE, THE APPLICATION UNDE R SECTION 154 OF THE ACT WAS RIGHTLY REJECTED. 3 P.B. CONSTRUCTION COMPANY 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IT IS THE CONTENTION OF THE ASSESSEE THAT THE REVENUE WAS NOT EMPOWERED TO LEVY FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS STATEME NTS UNDER SECTION 200A OF THE ACT. IT IS SUBMITTED , ONLY AFTER INTRODUCTION OF SUB CLAUSE (C) TO SECTION 200A(1) BY THE FINANCE ACT, 2015, W.E.F. 1 ST JUNE 2015, THE AUTHORITY CONCERNED WAS EMPOWERED TO LEVY LATE FILING FEE UNDER SECTION 234E OF THE ACT WHI LE PROCESSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT. THUS, IT IS SUBMITTED , SINCE THE PERIOD FOR WHICH FEE UNDER SECTION 234E OF THE ACT HAS BEEN LEVIED IS PRIOR TO INTRODUCTION OF SUB CLAUSE (C) OF SECTION 200A(1) OF THE ACT , WHICH IS APPLICABLE PROSPECTIVELY, NO FEE UNDER SECTION 234E OF THE ACT CAN BE LEVIED. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE REL IED UPON THE OBSERVATIONS OF LEARNED COMMISSIONER (APPEALS). 6. HAVING CONSIDERED RIVAL SUBMISSIONS AND PERUSED RELEVANT STATUTOR Y PROVISIONS, IT IS NOTICED THAT, THOUGH , SECTION 234E OF THE ACT WAS INTRODUCED TO THE STATUTE W.E.F. 1 ST JULY 2012, HOWEVER, NO SUCH CORRESPONDING AMENDMENT WAS MADE TO SECTION 200A OF THE ACT EMPOWERING THE AUTHORITY CONCERNED TO LEVY FEE UNDER SECTION234E OF THE ACT WH ILE PROCESSING THE TDS STATEMENTS. O NLY BY FINANCE ACT, 2015, INTRODUCED W.E.F. 1 ST JUNE 2015, CLAUSE (C) TO SECTION 200A(1) OF 4 P.B. CONSTRUCTION COMPANY THE ACT WAS INTRODUCED TO THE STATUTE EMPOWERING THE AUTHORITY CONCERNED TO LEVY FEE UNDER SECTION 234E OF THE ACT WHILE PROCESS ING THE TDS STATEMENT UNDER SECTION 200A OF T HE ACT. THEREFORE, PRIOR TO 1 ST JUNE 2015, THERE WAS NO SPECIFIC PROVISION UNDER SECTION 200A OF THE ACT FOR LEVY OF LATE FILING FEE. WE HAVE NOTED THAT DIFFERENT BENCHES OF THE TRIBUNAL , INCLUDING MUMBAI BENCHE S , HAVE HELD THAT PRIOR TO 1 ST JUNE 2015, PROVISIONS OF SECTION 200A OF THE ACT DID NOT CONTEMPLATE LEVY OF FEE UNDER SECTION 234E OF THE ACT. THEREFORE, IT WAS HELD THAT FOR LATE FILING OF TDS STATEMENT FOR ANY PERIOD PRIOR TO 1 ST JUNE 2015, NO FEE UNDER SECTION 234E OF THE ACT CAN BE LEVIED. THE HONBLE KARNATAKA HIGH COURT IN CASE OF FATHERAJ SINGHVI & ORS. VS. UNION OF INDIA & ORS. (2016) 289 CTR 0602 (KAR) , HAVE ALSO EXPRESSED IDENTICAL VIEW. IN FACT, THE TRIBUNAL, MUMBAI BENCH , IN A RECENT DECISION IN CASE OF EMSONS EXIM PVT. LTD. V/S ITO, ITA NO.4406/MUM./2017 & ORS., DATED 28 TH AUGUST 2019, BY MAJORITY VIEW, HAS HELD THAT LEVY OF FEE UNDER SECTION 234E OF THE ACT CANNOT BE MADE IN RESPECT OF A PERIOD PRIOR TO 1 ST JUNE 2015, W HILE PROCESSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT. THOUGH, THE HONBLE GUJARAT HIGH COURT IN CASE OF RAJESH KOURANI VS. UNION OF INDIA & 4 (2017) 99 CCH 0098 ( GU J) HAS EXPRESSED A CONTRARY VIEW, H OWEVER, FOLLOWING THE WELL SETTLED LEGAL PRI NC IPLE THAT IN CASE OF CONFLICTING VIEW S BEING EXPRESSED BY THE COURTS ON A PARTICULAR ISSUE , THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE TAKEN, WE ARE 5 P.B. CONSTRUCTION COMPANY MORE INCLINED TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN CASE OF FATHERAJ SINGHVI & ORS. VS. UNION OF INDIA & ORS. (SUPRA) AND BY THE TRIBUNAL IN CASE OF EMSONS EXIM PVT. LTD. (SUPRA). THUS, WE HOLD THAT SINCE THE PERIOD S FOR WHICH FEE UNDER SECTI ON 23 4E OF THE ACT HAVE BEEN LEVIED ARE PRIOR TO 1 ST JUNE 2015, THE AUTHORITY CONCER NED WAS NOT EMPOWERED TO LEVY SUCH FEE WHILE PROCESSING THE TDS STATEMENT S UNDER SECTION 200A OF THE ACT. ACCORDINGLY, THE LEVY OF LATE FILING FEE UNDER SECTION 234E OF THE ACT IS HEREBY DELETED. 7. IN THE RESULT, APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN C OURT ON 30.12.2019 SD/ - S. RIFAUR RAHMAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMB AI, DATED: 30.12.2019 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI