IMTIYAZ PALKAR, RAIGAD V. COMMISSIONER OF INCOME TAX (APPEALS)-3, , THANE

ITA 6918/MUM/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9806 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 06-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; Set aside
• Section: 234E; 200A; 201

Judgement Text

ITA NO.6918 & 6919/MUM/2017 A.Y. 2015 - 16 MR. IMTIYAZ A PALKAR VS. CIT(APPEALS) - 3 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI M. BALAGANESH, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NOS.6918 & 6919 /MUM/2017 (ASSESSMENT YEAR: 201 5 - 16 ) MR. IMTIYAZ A PALKAR 686C PALKAR HOUSE OLD POST LANE ALIBAUG, RAIGAD - 402201 VS. CIT(APPEALS) - 3 THANE CAMP NASHIK PAN AATPP5701A (APPELLANT) (RESPONDENT) APPELLANT BY: BY WRITTEN SUBMISSIONS RESPONDENT BY: SHRI PADMAPANI BORA, D.R DATE OF HEARING: 30 .01.2020 DATE OF PRONOUNCEMENT: 31 .01.2020 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE CONSOLIDATED ORDER P ASSED BY THE CIT(A) - 3, NASIK, (C AMP OFFICE: THANE), DATED 15.09.2017, WHICH IN TURN ARISES FROM THE RESPECTIVE INTIMATION S RECEIVED FROM THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL PROCESSING CELL - TDS, GHAZIABAD, UNDER SEC.200A OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT) FOR THE FIRST QUARTER (Q1) AND SECOND QUARTER (Q 2), BOTH DATED 30.04.2016. 2. BRIEFLY STATED, THE ASSESSEE HAD DELAY ED FILING OF ITS RESPECTIVE STATEMENT S OF TAX DEDUCTION AT SOURCE IN FORM 26Q FOR THE FIRST QUARTER (Q1) AND SECOND QUARTER (Q2) FOR A.Y. 2015 - 16. RESULTANTLY, THE ACIT, CENTRAL PROCESSING CELL - TDS LEVIED LATE FILING FEES OF RS.78,500/ - AND RS. 95 ,000/ - , RESPECTIVELY , UNDER SEC. 234E OF THE ACT. 3. AGGRIEVED, THE ASSESSEE ASSAILED THE IMPOSITION OF LATE FILING FEES UNDER SEC.234E BEFORE THE CIT(A). IT WAS OBSERVED BY THE CIT(A) THAT PRIOR TO 01.06.2015 THERE WAS NO ENABLING ITA NO.6918 & 6919/MUM/2017 A.Y. 2015 - 16 MR. IMTIYAZ A PALKAR VS. CIT(APPEALS) - 3 2 PROVISION IN SEC.200A FOR LEVYIN G LATE FILING FEE UNDER SEC.234E OF THE ACT. ACCORDINGLY, THE CIT(A) OBSERVED THAT THE A.O COULD MAKE AN ADJUSTMENT OF LATE FILING FEE UNDER SEC. 234E OF THE ACT ONLY W.E.F 01.06.2015. ACCORDINGLY , T HE CIT(A) WAS OF THE VIEW THAT AN ADJUSTMENT FOR LATE FILING FEE UNDER SEC. 234E COULD BE MADE ONLY IN A CASE WHERE THE RETURN WAS PROCESSED SUBSEQUENT TO 01.06.2015 I.E THE DATE ON WHICH THE ENABLING PROVISION FOR LEVYING LATE FILING FEE UNDER SEC. 234E WAS INCORPORATED IN SEC.200A OF THE ACT. ON THE B ASIS OF HIS AFORESAID OBSERVATIONS, THE CIT(A) WAS OF THE VIEW THAT AS THE STATEMENTS FILED BY THE ASSESSEE FOR BOTH OF THE AFOREMENTIONED QUARTERS I.E Q1 AND Q2 ON 26.04.2016 WERE PROCESSED ON 30.04.2016 I.E AFTER THE AFORESAID AMENDMENT WAS MADE IN SEC.200A, THEREFORE, THE A.O WAS JUSTIFIED IN IMPOSING LATE FILING FEE UNDER SEC.234E OF THE ACT. ACCORDINGLY, THE CIT(A) ON THE BASIS OF HIS AFORESAID DELIBERATIONS UPHELD THE LEVY OF FEE UNDER SEC. 234E OF THE ACT AND DISMISSED THE APPEALS OF THE ASSESSE E FOR BOTH THE AFOREMENTIONED QUARTERS. 4. THE ASSESSEE BEING AGGRIEVED WITH THE ORDERS PASSED BY THE CIT(A) FOR THE AFOREMENTIONED QUARTERS VIZ. Q1 AND Q2 FOR A.Y. 2015 - 16 HAS CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND THAT THE ASSESSEE HAD PREF ERRED TO REPRESENT HIS CASE ON THE BASIS O F WRITTEN S UBMISSIONS, DATED 08.05.2019. ON A PERUSAL OF THE RECORDS, WE FIND THAT IT IS STATED BY THE COUNSEL FOR THE ASSESSEE THAT THE MATTER MAY BE DECIDED AFTER CONSIDERING THE WRITTEN S UBMISSIONS THAT HAD BEEN FILED BY HIM. 5. PER CONTRA, THE LD. DEPARTMENTAL REP RESENTATIVE (FOR SHORT D.R) RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. IT WAS AVERRED BY THE LD. D.R THAT AS THE RESPECTIVE STATEMENTS OF TAX DEDUCTED AT SOURCE FOR THE AFOREMENTIONED QUARTERS VIZ. Q1 AND Q2 WERE FILED AFTER THE CUT OF F DATE I.E SUBSEQUENT TO THE AMENDMENT T O SEC.200A W.E.F 01.06.2015, THEREFORE, THE A.O WAS TOTALLY JUSTIFIED AND VESTED WITH THE REQUISITE JURISDICTION TO LEVY FEES UNDER SEC.234E OF THE ACT. ON THE BA SIS OF HIS AFORESAID CONTENTION IT WAS SUBMITTED BY THE LD. D.R THAT AS THE APPEAL OF THE ASSE SSEE WAS DEVOID OF ANY MERIT, THEREFORE, THE SAME DID NOT MERIT ACCEPTANCE. 6. WE HAVE HEARD THE LD. D.R AND ALS O PERUSED THE WRITTEN S UBMISSIONS FILED BY THE ASSESSEE, AS WELL AS THE ORDERS OF THE LOWER AUTHORITIES AND THE JUDICIAL PRONOUNCEMENTS RELIE D UPON BY THE PARTIES BEFORE US. ADMITTEDLY, IT IS A MATTER OF FACT BORNE FROM THE RECORDS THAT THE ASSESSEE HAD DELAYED THE FILING OF THE STATEMENTS OF TAX DEDUCTION AT SOURCE IN FORM 26Q FOR BOTH OF THE AFORESAID QUARTERS I.E Q1 AND Q2 RELEVANT TO ASSESSMENT YEAR 2015 - 16. ON A ITA NO.6918 & 6919/MUM/2017 A.Y. 2015 - 16 MR. IMTIYAZ A PALKAR VS. CIT(APPEALS) - 3 3 PERUSAL OF THE R ECORDS, IT STANDS REVEALED THAT THE STATEMENTS OF TAX DEDUCTION AT SOURCE FOR BOTH THE SAID QUARTERS WERE FILED BY THE ASSESSEE IN FORM 26Q ON 26.04.2016 , WHICH THEREAFTER WERE PROCESSED UNDER SEC.200A OF THE I.T ACT ON 30.04.2016 . WE FIND THAT THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI & ORS. VS. UNION OF INDIA (2016) 289 CTR 602 (KAR.) HAD CONCLUDED, THAT THE INTIMATION UNDER SEC.200A OF THE I.T. ACT COMPUTING FEE UNDER SEC.234E TO THE EXTENT THE SAME RELATED TO THE PERIOD OF THE TAX DEDUCTED PRIOR TO 01.06.2015 WAS LIABLE TO BE SET ASIDE. THE AFORESAID JUDGMENT OF THE HONBLE HIGH COURT OF KARNATAKA HAD THEREAFTER BEEN RELIED UPON BY THE ITAT, CHANDIG ARH IN THE CASE OF SONALAC PAINTS & COATINGS LTD. VS. DCIT (2018) 167 DTR 83 (CHD.) . IN THE AFORESAID CASE , IT WAS OBSERVED BY THE TRIBUNAL THAT LEVY OF FEES UNDER SEC.234E WHILE PROCESSING THE TDS RETURNS UNDER SEC.200A PRIOR TO 01.06.201 5 WAS WITHOUT ANY AUTHORITY OF LAW. ON THE BASIS OF ITS AFORESAID OBSERVATIONS, THE TRIBUNAL HAD CONCLUDED THAT THE FEES LEVIED UNDER SEC.234E PRIOR TO 01.06.2015 IN THE INTIMATIONS MADE UNDER SEC. 200A WAS WITHOUT ANY AUTHORITY OF LAW AND WAS LIABLE TO BE DELETED. APART T HEREFROM, WE FIND THAT THE ISSUE INVOLVED IN THE APPEAL BEFORE US IS ALSO COVERED BY AN ORDER OF THE ITAT, AMRITSAR IN THE CASE OF TATA RICE MILLS VS. ACIT (CPC), TDS GHAZIABAD (ITA NO. 395/ASR/2016; DATED 25.10.2017 . IN THE AFOREMENTIONED CASE, IT WAS OBS ERVED BY THE TRIBUNAL THAT THE ASSESSEE HAD FILED ITS STATEMENT OF TAX DEDUCTION AT SOURCE FOR THE SECOND QUARTER RELEVANT TO FINANCIAL YEAR 2014 - 15 ON 19 TH JUNE, 2015, WHICH WAS THEREAFTER PROCESSED ON 23.06.2015 BY THE ACIT - TDS, CPC AND A LATE FEE UNDE R SEC. 234E OF RS. 49,400/ - WAS CHARGED IN THE INTIMATION ISSUED UNDER SEC. 200A OF THE I.T. ACT. IT WAS OBSERVED BY THE TRIBUNAL THAT AS THE AMENDMENT MADE TO SEC.200A WAS EFFECTIVE FROM 01.06.2015 AND APPLICABLE PROSPECTIVELY, HENCE NO COMPUTATION OF FEE UNDER SEC.234E COULD BE MADE FOR THE TDS DEDUCTED PRIOR TO 01.06.2015. 7. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ISSUE BEFORE US AND FINDING OURSELVES AS BEING IN AGREEMENT WITH THE VIEW TAKEN BY THE TRIBUNAL IN THE CASE OF TATA RICE MILLS (SUPRA ), ARE OF THE CONSIDERED VIEW THAT THE ACIT - TDS, CPC GHAZIABAD IN THE CASE BEFORE US HAD ERRED IN LEVYING FEES UNDER SEC.234E IN RESPECT OF TAX DEDUCTED AT SOURCE FOR BOTH OF THE AFORESAID QUARTERS I.E Q1 AND Q2 PERTAINING TO F.Y. 2014 - 15, I.E PRIOR TO 01.06.2015. WE THUS NOT BEING PERSUADED TO SUBSCRIBE TO THE VIEW TAKEN BY THE CIT(A) WHO HAD UPHELD THE LEVY OF FEES BY THE A.O SET ASIDE HIS ORDER AND VACATE THE DEMAND RAISED BY THE A.O UNDER SEC.234E IN THE HANDS OF THE ASSESSEE FOR BOTH OF THE AFO RESAID QUARTERS FOR THE YEAR UNDER CONSIDERATION. ITA NO.6918 & 6919/MUM/2017 A.Y. 2015 - 16 MR. IMTIYAZ A PALKAR VS. CIT(APPEALS) - 3 4 8. ACCORDINGLY, THE FEES LE VIED BY THE ACIT, CPC - GHAZIABAD UNDER SEC.234E FOR Q1 (RS.78,500/ - ) AND Q2 (RS.95,000/ - ) FOR F.Y. 2014 - 15 ARE DELETED. 9 . RESULTANTLY, BOTH THE APPEALS FILED BY THE ASSESSEE F OR A.Y. 2015 - 16 I.E. ITA NOS. 6918 & 6919/MUM /2017 ARE ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRONOUNCE D IN THE OPEN COURT ON 31. 01.2020 S D/ - SD/ - ( M. BALAGANESH ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 31 .01.2020 P.S ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI