SANDEEP JHANWAR ADVISORY SERVICES PRIVATE LIMITED, Jaipur V. TDS CPC,

ITA 722/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5014 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 27-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA JHA J CIT DHK

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 722 & 723/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 / Q-3 & 4. M/S. SANDEEP JHANWAR ADVISORY SERVICES PVT. LTD., B-144A, 1 ST FLOOR, MANGAL MARG, BAPU NAGAR, JAIPUR. CUKE VS. THE TDS CPC, AAYKAR BHAWAN, GHAZIABAD. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN /TAN NO. JPRS11268F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SANDEEP JHANWAR (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA JHA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04.10.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 18/10/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THESE ARE TWO APPEALS BY THE ASSESSEE DIRECTED AGAI NST THE TWO SEPARATE ORDER OF LD. CIT (APPEALS)-III, JAIPUR DATED 26.05. 2016 PERTAINING TO ASSESSMENT YEAR 2013-14. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ITA NO. 722/JP/2016 : 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN NOT HOLDING THE INTIMATION ISSUED U/S 200A , RAISING A DEMAND OF RS. 4,200/- BY APPLYING THE PROVISION THE SECTION 234E, AS BAD IN LAW. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN CONFIRMING THE LEVY OF FEES U/S 234E OF RS . 4,200/-. HOWEVER, THE SAME IS NOT JUSTIFIED AND DESERVES TO BE WITHDRAWN. 2 ITA NOS. 722 & 723/JP/2016 SANDEEP JHANWAR ADVISORY SERVICES P LTD. ITA NO. 723/JP/2016 : 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN NOT HOLDING THE INTIMATION ISSUED U/S 200A , RAISING A DEMAND OF RS. 16,850/- BY APPLYING THE PROVISION TH E SECTION 234E, AS BAD IN LAW. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN CONFIRMING THE LEVY OF FEES U/S 234E OF RS . 16,850/-. HOWEVER, THE SAME IS NOT JUSTIFIED AND DESERVES TO BE WITHDRAWN. THE GROUNDS INVOLVED IN THESE APPEALS ARE COMMON, T HEREFORE, BOTH THESE APPEALS ARE TAKEN UP TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER, FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT IN INTIMATION UNDER SECTION 200A DATED 25.12.2013 A FEES OF RS. 4,200/- UNDER SECTIO N 234E WAS LEVIED FOR THE DELAY OF 21 DAYS IN FILING THE QUARTERLY STATEMENT OF TDS IN FORM 26Q FOR THE THIRD QUARTER OF FINANCIAL YEAR 2012-13. AGAINST THIS INTIMATIO N, APPLICANT FILED AN APPEAL BEFORE LD. CIT (A), WHO RELYING ON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND OTHERS DATED 28. 07.2015 UPHELD THE LEVY OF FEES UNDER SECTION 234E OF THE ACT FOR DELAY IN FIL ING THE TDS RETURN. 3. THE LD. COUNSEL FOR THE ASSESSEE ARGUED NO FEES COULD BE LEVIED U/S 234E WHILE ISSUING INTIMATION U/S 200A BEFORE 01.06.2015 AS POWER TO CHARGE/COLLECT FEES UNDER SECTION 234E WHILE ISSUING INTIMATION U/S 200 A WAS VESTED WITH REVENUE ONLY ON SUBSTITUTION OF CLAUSE (C) TO SECTION 200A VIDE FINANCE ACT, 2015 W.E.F. 01.06.2015. 3.1. THE LD. COUNSEL FURTHER SUBMITTED THAT ONCE AN Y PROVISION OF THE ACT HAS BEEN MADE APPLICABLE FROM A PARTICULAR DATE, THEN THE RE QUIREMENT OF THE STATUTE IS TO 3 ITA NOS. 722 & 723/JP/2016 SANDEEP JHANWAR ADVISORY SERVICES P LTD. APPLY THE SAID PROVISIONS FROM THAT SPECIFIC DATE. HENCE, IN THE TDS STATEMENTS FILED PRIOR TO 01.06.2015, LATE FEES U/S 234E CANNOT BE L EVIED. RELIANCE IN THIS REGARD IS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS :- SHRI FATHERAJ SINGHVI & ORS (WRIT APPEAL NO. 2663-2674/2015(T-IT) 73 TAXMANN.C OM 252 (KAR.HC) GAJANAN CONSTRUCTIONS VS. DCIT (73 TAXMANN.COM 380)(ITAT PUNE) SMT. G. INDHIRANI VS. DCIT (60 TAXMANN.COM 312)(ITAT CHENNAI) MAHARASHTRA CRICKET ASSOCIATION VS. DCIT (74 TAXMANN.COM 6)(ITAT PUNE) SIBIA HEALTHCARE PVT. LTD. VS. DCIT (61 TAXMANN.COM 70) (ITAT AMRITSAR) DHANLAXMI DEVELOPERS VS. DCIT (ITA NO. 2888 TO 2891/AHD/2015)(ITAT AHMEDABAD) HE FURTHER ARGUED THAT THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP PVT. LTD. (49 TAXMANN.COM 249) HAS DISCUSS ED IN DETAIL THE GENERAL PRINCIPLE OF CONCERNING RETROSPECTIVELY AND HELD TH AT UNLESS CONTRARY INTENTION APPEARS, A LEGISLATION IS PRESUMED NOT TO HAVE A RE TROSPECTIVE OPERATION. KEEPING IN VIEW THE PRINCIPLES LAID DOWN IN ABOVE JUDGMENT, IT CAN BE SAID THAT SECTION 200A WAS AMENDED TO LEVY FEES U/S 234E PROSPECTIVELY W.E .F. 01.06.2015 AS THE LEGISLATION IN THIS REGARD WAS CLEARLY WORDED AND NO CONTRARY I NTERPRETATION CAN BE MADE. THE SAID VIEW IS ALSO UPHELD IN THE CASE LAWS CITED SUP RA. 3.2. IN RESPECT OF THE DECISION OF HONBLE RAJASTHA N HIGH COURT IN THE CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND OTHERS, THE LD. COUNS EL CONTENDED THAT HONBLE COURT HAS UPHELD THE CONSTITUTIONAL VALIDITY OF LEV Y OF FEES UNDER SEC. 234E OF THE ACT 4 ITA NOS. 722 & 723/JP/2016 SANDEEP JHANWAR ADVISORY SERVICES P LTD. AND HAS NOT DISCUSSED THE LEVY OF FEES UNDER SECTIO N 234E IN THE TDS STATEMENT PROCESSED UNDER SEC. 200A OF THE ACT BEFORE 1.6.201 5. THEREFORE THE FINDING THAT WE DO NOT FIND THAT PRIOR TO THIS AMENDMENT THE IM POSITION OF FEES WAS ILLEGAL CANNOT BE TAKEN AS BASE FOR LEVY OF FEES UNDER SEC. 234E ON THE STATEMENTS PROCESSED UNDER SECTION 200A PARTICULARLY WHEN KARN ATAKA HIGH COURT IN ITS DECISION DATED 26.08.2016 HAS CATEGORICALLY HELD THAT NO DEM AND FOR FEES U/S 234 E CAN BE MADE IN THE INTIMATION ISSUED FOR TDS DEDUCTED 200A BEFORE 1.6.2015. 3.4. ON THE CONTRARY, THE LD. D/R SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. 3.5. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. WE HAVE ALSO GONE THROUGH THE CASE LAWS RELIED UPON BY THE LD. COUNSEL. WE FI ND MERIT INTO THE CONTENTION OF LD. COUNSEL THAT HE JURISDICTIONAL HIGH COURT HAS DECID ED THE VALIDITY OF SECTION 234E, BUT HAS NOT DECIDE THE ISSUE OF POWER OF AO FOR LEV Y OF TAX UNDER SECTION 234E IN THE JUDGMENT RENDERED IN THE CASE OF M/S. DUNDLOD SHIKS HAN SANSTHAN AND OTHERS (SUPRA) AS RELIED BY LD. CIT (A). WE HAVE CONSIDE RED THE RECENT DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF SHRI FATHERAJ S INGHVI & ORS (SUPRA) WHEREIN THE ISSUE OF LEVY OF FEES U/S 234E ON STATEMENTS PROCES SED U/S 200A BEFORE 01.06.2015 HAS BEEN CATEGORICALLY DISCUSSED BY THE HONBLE HIG H COURT AND IN PARA 24 OF THE SAID ORDER IT WAS HELD THAT NO DEMAND FOR FEE U/S 234E CAN BE MADE IN INTIMATION ISSUED FOR TDS DEDUCTED U/S 200A BEFORE 01.06.2015 . WE HAVE ALSO GONE THROUGH THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE O F CIT VS. VATIKA TOWNSHIP PVT. LTD. (SUPRA) WHEREIN THE HONBLE APEX COURT HAS DIS CUSSED IN DETAIL THE GENERAL PRINCIPLE OF CONCERNING RETROSPECTIVELY AND HELD TH AT UNLESS CONTRARY INTENTION APPEARS, A LEGISLATION IS PRESUMED NOT TO HAVE A RE TROSPECTIVE OPERATION. RESPECTFULLY 5 ITA NOS. 722 & 723/JP/2016 SANDEEP JHANWAR ADVISORY SERVICES P LTD. FOLLOWING THE ABOVE JUDGMENTS OF HONBLE SUPREME CO URT AND HONBLE KARNATAKA HIGH COURT, WE SET ASIDE THE ORDER OF LD. CIT (A) A ND DIRECT THE AO TO DROP THE DEMAND RAISED OF RS. 4,200/- U/S 234E ON STATEMENTS PROCESSED U/S 200A BEFORE 01.06.2015. THUS GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. ITA NO. 723/JP/2016 : 4. THE ISSUE RAISED IN THIS APPEAL IS EXACTLY IDENT ICAL TO ITA NO. 722/JP/2016. SINCE THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTA NCES IN THE PRESENT APPEAL, THEREFORE, FOLLOWING THE DECISION ARRIVED AT IN ITA NO. 722/JP/2016, WE SET ASIDE THE ORDER OF LD. CIT (A) AND ALLOW THIS APPEAL OF THE A SSESSEE ALSO. 5. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/10/2016 . SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 18/10/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SANDEEP JHANWAR ADVISORY SERVICE PVT. LTD., JAIPUR. 2. THE RESPONDENT- THE TDS CPC, AAYKAR BHAWAN, GHAZ IABAD. 3. THE CIT, 4. THE CIT (A) 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 722 & 723/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 6 ITA NOS. 722 & 723/JP/2016 SANDEEP JHANWAR ADVISORY SERVICES P LTD.