Krishna Art Silk Cloth Pvt.Ltd., Surat V. The Dy.CIT, TDS Range, Surat

ITA 7/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1946 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-03-2016
• Assessment Year: misc
• Appeal Filed On: 01-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: R B SHAH

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA.NO.7/AHD/2016 / ASSTT. YEAR: 2014-15 KRISHNA ART SILK CLOTH P.LTD. 261/A, GIDC PANDESSARA PANDESSARA PO SURAT 394 221. PAN : AABCK 1458 N VS DCIT, TDS RANGE SURAT. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI R.B. SHAH, AR REVENUE BY : MS.SONIA KUMAR, SR.DR / DATE OF HEARING : 16/03/2016 / DATE OF PRONOUNCEMENT: 01/04/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD.CIT(A)-3, SURAT DATED 8.4.2015 FOR THE ASSTT.YEA R 2014-15. 2. THE REGISTRY HAS POINTED OUT THAT THE APPEAL OF THE ASSESSEE IS TIME BARRED BY 82 DAYS. IN ORDER TO EXPLAIN THE DELAY, IT HAS BEEN CONTENDED BY THE ASSESSEE THAT WHEN IT TOOK OPINION FROM THE COUNSEL OF THE ASSESSEE FOR FILING OF APPEAL AGAINST THE ORDER OF THE LD.CIT(A), THE LD.COUNSEL FOR THE ASSESSEE ADVISED THAT NO FRUITFU L RESULT WILL COME IF THE ITA NO.7/AHD/2016 2 APPEAL IS BEING FILED. HOWEVER, LATER ON, WHEN THE AMRISTAR BENCH OF THE TRIBUNAL HAS GIVEN DECISION IN THE CASE OF SIBIA HEALTHCARE P. LTD. VS. DCIT ON SIMILAR ISSUE, HE WAS ADVISED TO FILE THE A PPEAL. THE ASSESSEE HAS ACTED BONA FIDE ON THE ADVICE OF ITS COUNSEL AND COULD NOT FILE TH E APPEAL WELL IN TIME. 3. ON DUE CONSIDERATIONS OF ALL THE FACTS AND CIRCU MSTANCES, WE ARE OF THE VIEW THAT THERE IS NO DELIBERATE ATTEMPT AT THE END OF THE ASSESSEE TO ADOPT DILATORY STRATEGY. IT ACTED UNDER A WRONG PRESUMPT ION AND WRONG ADVICE. THEREFORE, WE CONDONE THE DELAY AND PROCEED TO DECI DE THE APPEAL ON MERIT. 4. THE ASSESSEE IS AGGRIEVED BY THE ACTION OF THE L D.CIT(A) IN CONFIRMING LEVY OF LATE FILING FEES OF RS.50,400/- UNDER SECTION 234E OF THE ACT FOR THE QUARTER OF A.Y.2014-15. 5. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT L ATE PAYMENT UNDER SECTION 234E WAS LEVIED PRIOR TO AMENDMENT TO SECTI ON 200A OF THE INCOME TAX ACT. HE SUBMITTED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE ITAT, AHMEDABAD BENCH PASSED IN THE CASE OF DHARTI ASSOCIATES VS. DCIT, IN ITA NO.100 /AHD/2015 ORDER DATED 29.9.2015. HE PLACED ON RECORD COPY OF THE TRIBUNA L ORDER DATED 29.9.2015. 6. WE FIND THAT THE TRIBUNAL IN THE ABOVE ORDER HAS FOLLOWED ORDER OF THE ITAT, AMRISTAR BENCH IN THE CASE OF SIBIA HEALTHCAR E P. LTD. VS. DCIT, ITA NO.90/ASR/2015 AND THE TRIBUNAL HAS REPRODUCED THE RELEVANT PART OF THE ORDER. IT READS AS UNDER: 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. IN ADDITION TO HIS ARGUM ENT ON THE ITA NO.7/AHD/2016 3 MERITS, LEARNED COUNSEL HAS ALSO INVITED OUR ATTENT ION TO THE REPORTS ABOUT THE DECISIONS OF VARIOUS HONBLE HIGH COURTS, INCLUDING HONBLE KERALA HIGH COURT, IN THE CASE OF NARATH MAPILA LP SCHOOL VS UNION OF INDIA [WP (C) 31498/20 13(J)], HONBLE KARANATAKA HIGH COURT IN THE CASE OF ADITHY A BIZOR P SOLUTIONS VS UNION OF INDIA [WP NO. 6918-6938/2014( T-IT), HONBLE RAJASTHAN HIGH COURT IN THE CASE OF OM PRAK ASH DHOOT VS UNION OF INDIA [WP NO. 1981 OF 2014] AND OF HON BLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALI A VS UNION OF INDIA [WP NO. 771 OF 2014], GRANTING STAY ON THE DEMANDS RAISED IN RESPECT OF FEES UNDER SECTION 234 E. THE FULL TEXT OF THESE DECISIONS WERE NOT PRODUCED BEFORE US . HOWEVER, AS ADMITTEDLY THERE ARE NO ORDERS FROM THE HONBLE COU RTS ABOVE RETRAINING US FROM OUR ADJUDICATION ON MERITS IN RE SPECT OF THE ISSUES IN THIS APPEAL, AND AS, IN OUR HUMBLE UNDERS TANDING, THIS APPEAL REQUIRES ADJUDICATION ON A VERY SHORT LEGAL ISSUE, WITHIN A NARROW COMPASS OF MATERIAL FACTS, WE ARE PROCEEDING TO DISPOSE OF THIS APPEAL ON MERITS. 5. WE MAY PRODUCE, FOR READY REFERENCE, SECTION 234 E OF THE ACT, WHICH WAS INSERTED BY THE FINANCE ACT 2012 AND WAS BROUGHT INTO EFFECT FROM 1ST JULY 2012. THIS STATUTORY PROV ISION IS AS FOLLOWS: 234E. FEE FOR DEFAULTS IN FURNISHING STATEMENTS (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SE CTION 200 OR THE PROVISO TO SUBSECTION (3) OF SECTION 206C, H E SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDR ED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTI NUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTI BLE, AS THE CASE MAY BE. (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERE D A STATEMENT IN ACCORDANCE WITH SUB-SECTION (3) OF SEC TION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 20 6C. ITA NO.7/AHD/2016 4 (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR TH E PROVISO TO SUB-SECTION (3) OF SECTION 206C WHICH IS TO BE D ELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURC E OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTE R THE 1ST DAY OF JULY, 2012. 6. WE MAY ALSO REPRODUCE THE SECTION 200A WHICH WAS INSERTED BY THE FINANCE ACT 2009 WITH EFFECT FROM 1ST APRIL 2010. THIS STATUTORY PROVISION, AS IT STOOD AT THE RELEVANT PO INT OF TIME, WAS AS FOLLOWS: 200A: PROCESSING OF STATEMENTS OF TAX DEDUCTED AT S OURCE (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE, O R A CORRECTION STATEMENT, HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLO WING MANNER, NAMELY: (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMAT ION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AM OUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID U NDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OT HERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND ITA NO.7/AHD/2016 5 (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR: PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FI NANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION : FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMEN T' SHALL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE STAT EMENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTR Y OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOU RCE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF TH IS ACT; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB- SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRA LISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUBSECTION. 7. BY WAY OF FINANCE ACT 2015, AND WITH EFFECT FROM 1ST JUNE 2015, THERE IS AN AMENDMENT IN SECTION 200A AND THI S AMENDMENT, AS STATED IN THE FINANCE ACT 2015, IS AS FOLLOWS: IN SECTION 200A OF THE INCOME-TAX ACT, IN SUB-SECTI ON (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WITH EFFECT FROM THE 1ST DAY OF JUNE, 2015, NAMELY: (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 234E; (D) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF TH E AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST AN Y AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 23 4E AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE; ITA NO.7/AHD/2016 6 (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR. 8. IN EFFECT THUS, POST 1ST JUNE 2015, IN THE COURS E OF PROCESSING OF A TDS STATEMENT AND ISSUANCE OF INTIMATION UNDER SECTION 200A IN RESPECT THEREOF, AN ADJUSTMENT COULD ALSO B E MADE IN RESPECT OF THE FEE, IF ANY, SHALL BE COMPUTED IN A CCORDANCE WITH THE PROVISIONS OF SECTION 234E. THERE IS NO DISPUT E THAT WHAT IS IMPUGNED IN APPEAL BEFORE US IS THE INTIMATION UNDE R SECTION 200A OF THE ACT, AS STATED IN SO MANY WORDS IN THE IMPUGNED INTIMATION ITSELF, AND, AS THE LAW STOOD, PRIOR TO 1ST JUNE 2015, THERE WAS NO ENABLING PROVISION THEREIN FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEES UNDER SECTION 234E. WHILE E XAMINING THE CORRECTNESS OF THE INTIMATION UNDER SECTION 200A, W E HAVE TO BE GUIDED BY THE LIMITED MANDATE OF SECTION 200A, WHIC H, AT THE RELEVANT POINT OF TIME, PERMITTED COMPUTATION OF AM OUNT RECOVERABLE FROM, OR PAYABLE TO, THE TAX DEDUCTOR A FTER MAKING THE FOLLOWING ADJUSTMENTS: (A). AFTER MAKING ADJUSTMENT ON ACCOUNT OF ARITHME TICAL ERRORS AND INCORRECT CLAIMS APPARENT FROM ANY INFORMATION IN THE STATEMENT - SECTION 200A(1)(A) (B). AFTER MAKING ADJUSTMENT FOR INTEREST, IF ANY, COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STA TEMENT. - SECTION 200A(1)(B) 9. NO OTHER ADJUSTMENTS IN THE AMOUNT REFUNDABLE TO , OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBL E IN ACCORDANCE WITH THE LAW AS IT EXISTED AT THAT POINT OF TIME. 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSID ERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER SECTION 246A(A), AND, THEREF ORE, THE CIT(A) OUGHT TO HAVE EXAMINED LEGALITY OF THE ADJUS TMENT MADE UNDER THIS INTIMATION IN THE LIGHT OF THE SCOPE OF THE SECTION 200A. ITA NO.7/AHD/2016 7 LEARNED CIT(A) HAS NOT DONE SO. HE HAS JUSTIFIED TH E LEVY OF FEES ON THE BASIS OF THE PROVISIONS OF SECTION 234E. THA T IS NOT THE ISSUE HERE. THE ISSUE IS WHETHER SUCH A LEVY COULD BE EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A. THE AN SWER IS CLEARLY IN NEGATIVE. NO OTHER PROVISION ENABLING A DEMAND IN RESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN ADMITTED POSITION THAT IN THE ABSENCE OF THE ENABLI NG PROVISION UNDER SECTION 200A, NO SUCH LEVY COULD BE EFFECTED. AS INTIMATION UNDER SECTION 200A, RAISING A DEMAND OR DIRECTING A REFUND TO THE TAX DEDUCTOR, CAN ONLY BE PASSED WITHIN ONE YEA R FROM THE END OF THE FINANCIAL YEAR WITHIN WHICH THE RELATED TDS STATEMENT IS FILED, AND AS THE RELATED TDS STATEMENT WAS FILE D ON 19TH FEBRUARY 2014, SUCH A LEVY COULD ONLY HAVE BEEN MAD E AT BEST WITHIN 31ST MARCH 2015. THAT TIME HAS ALREADY ELAPS ED AND THE DEFECT IS THUS NOT CURABLE EVEN AT THIS STAGE. IN V IEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF TH E CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234 E IS UNSUST AINABLE IN LAW. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASS ESSEE AND DELETE THE IMPUGNED LEVY OF FEE UNDER SECTION 234E OF THE ACT. THE ASSESSEE GETS THE RELIEF ACCORDINGLY. 5. WHEN THE ABOVE JUDICIAL PRECEDENT WAS BROUGHT TO THE NOTICE OF THE LD. DEPARTMENTAL REPRESENTATIVE, HE DID NOT HAVE MUCH TO SAY EXCEPT TO PLACE HIS RELIANCE ON THE ORDERS OF T HE AUTHORITIES BELOW. HE FAIRLY DID NOT DISPUTE THAT THE PROVISION S ACCEPTING LEVY OF LATE FILING FEES UNDER SECTION 234E HAVE IN DEED BEEN BROUGHT TO THE STATUTE W.E.F. 1ST JUNE, 2015 AND TH E IMPUGNED ORDER WAS PASSED MUCH BEFORE THAT DATE. 6. IN VIEW OF THE ABOVE DISCUSSIONS AND BEARING IN MIND ENTIRETY OF THE CASE, WE HEREBY DELETE THE LEVY OF LATE FILI NG FEES UNDER SECTION 234E OF THE ACT BY WAY OF IMPUGNED INTIMATI ON ISSUED ON 11.12.2013. THE ASSESSEE GETS THE RELIEF ACCORDINGL Y. 7. THE LD.DR HAS NOT BROUGHT TO OUR NOTICE ANY OTHE R JUDGMENT NEGATING THE ABOVE FINDING OF THE TRIBUNAL OR PERSUADE US TO DEVIATE FROM THE VIEW TAKEN BY THE TRIBUNAL IN THE ABOVE ORDER, ON THE IS SUE OF LEVY OF LATE FEE UNDER SECTION 234E OF THE ACT. THEREFORE, FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF DHARTI ASSOCIATES VS. DCIT, (SUPRA), WH ICH IN TURN FOLLOWED THE ORDER OF AMRISTAR BENCH OF THE TRIBUNAL IN THE CASE OF SIBIA HEALTHCARE P.LTD. ITA NO.7/AHD/2016 8 (SUPRA), WE ALLOW APPEAL OF THE ASSESSEE AND DELETE THE LEVY OF LATE FEE IMPOSED UNDER SECTION 234E OF THE ACT OF RS.50,400/ - FOR THE QUARTER-2 IN THE F.Y. 2013-14. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 1 ST APRIL, 2016 AT AHMEDABAD. SD/- SD/- ( N.K. BILLAIYA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER