MENTOR INDIA LIMITED, Jaipur V. DCIT, CPC-TDS,

ITA 738/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4850 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 08-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH JCIT DHK
• Assessee Lawyers: K L MOOLCHANDAN I

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH DQY HKKJR ] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 738/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 M/S MENTOR INDIA LIMITED, MENTOR HOUSE, GOVIND MARG, SETHI COLONY, JAIPUR. CUKE VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRALISED PROCESSING CELL- TDS, GAZIABAD. TAN NO.: JPRM 02591 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 739 & 740/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 SITA RAM SHARMA, PROP.- SHREE DAYAL EXPORTS, RAINA CLINIC BUILDING, NEAR DHARAM KATA, JHALNA DUNGRI, JAIPUR-302001. CUKE VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRALISED PROCESSING CELL- TDS, GAZIABAD. TAN NO.: JPRS 06414 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 741 TO 743/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 RICKY MATHUR, 33, DHULESHWAR GARDEN, SARDAR PATEL MARG, JAIPUR. CUKE VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRALISED PROCESSING CELL- TDS, GAZIABAD. TAN NO.: JPRR 04421 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA 738/JP/2016 & ORS. ITAS_ M/S MENTOR INDIA LTD. VS DCIT WITH OTHER 10 CASES 2 VK;DJ VIHY LA-@ ITA NO. 744 TO 748/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 & 2014-15 M/S JYOTI VIDHYAPEETH TRUST, 143, GOME DEFENCE COLONY, AJMER ROAD, JAIPUR. CUKE VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRALISED PROCESSING CELL- TDS, GAZIABAD. TAN NO.: JPRJ 06807 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI K.L. MOOLCHANDANI, (CA) JKTLO DH VKSJ LS@ REVENUE BY : MRS. NEENA JEPH (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 09/12/2016 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/12/2016 VKNS'K@ ORDER PER: BENCH ALL THESE APPEALS ARE FILED BY THE DIFFERENT ASSES SEES AGAINST THE SEPARATE ORDERS DATED 08/06/2016, 25/05/2016 AND 01 /06/2016 PASSED BY THE LD. CIT(A)-III, JAIPUR PERTAINING TO THE A.YS . 2012-13, 2013-14 AND 2014-15. 2. SINCE THE COMMON ISSUE IS RAISED IN ALL THE APPE ALS, THEREFORE, THE SAME ARE HEARD TOGETHER AND FOR THE SAKE OF CONVENI ENCE AND BREVITY, A COMMON ORDER IS BEING PASSED. 3. FOR THE PURPOSES OF FACTS, WE TAKE ITA NO. 738/JP /2016 PERTAINING TO A.Y. 2013-14. IN THIS APPEAL, THE ASSESSEE HAS R AISED ONLY ONE EFFECTIVE GROUND, WHICH IS AS UNDER:- ITA 738/JP/2016 & ORS. ITAS_ M/S MENTOR INDIA LTD. VS DCIT WITH OTHER 10 CASES 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS LEGALLY AND FACTUALLY ERRED IN CONFIR MING LATE FILING FEE OF RS. 48,402/- CHARGED BY THE LD. A.O. U/S 234E OF THE IT ACT, 1961 IGNORING THE FACT THAT DUR ING THE RELEVANT PERIOD THERE WAS NO SUCH PROVISION IN SECTION 200A OF THE IT ACT, 1961 FOR CHARGING SUCH L ATE FILING FEE WILE PROCESSING THE QUARTERLY STATEMENT F ILED IN FORM NO. 26Q AND ALSO WITHOUT APPRECIATING THE FACTS DISCUSSED IN WRITTEN SUBMISSIONS SUPPORTED BY CASE L AWS OF VARIOUS ITAT BENCHES. THUS, CONFIRMING OF THE ACTI ON OF LD. A.O. OF CHARGING OF SUCH FEE WHILE SENDING INTIMATION U/S 200A IS LEGALLY AND FACTUALLY INCORR ECT AND DESERVES TO BE DELETED. IN ALL THE OTHER APPEALS ALSO, THE ASSESSEES HAVE T AKEN SIMILAR IDENTICAL GROUNDS MENTIONED ABOVE. 4. BRIEFLY STATED FACTS IN THIS CASE ARE THAT THE A SSESSING OFFICER LEVIED LATE FEE U/S 234E OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT) FOR FILING THE TDS RETURN LATE VIDE ORDER DATED 25 TH DECEMBER, 2013. SIMILAR IDENTICAL FACTS HAVE ALSO BEEN MENTIONED B Y THE A.O. IN ALL THE OTHER APPEALS. 5. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS, HAS DISMISSED THE APPEAL. ITA 738/JP/2016 & ORS. ITAS_ M/S MENTOR INDIA LTD. VS DCIT WITH OTHER 10 CASES 4 BY PASSING THE SIMILAR IDENTICAL FINDINGS, THE LD. CIT(A) HAVE ALSO DISMISSED ALL THE OTHER APPEALS OF THE ASSESSEES FO R ALL THE OTHER ASSESSMENT YEARS. 6. NOW THE ASSESSEE IS IN APPEAL BEFORE US. IN ITA N O. 438/JP/2016, THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMATION O F LATE FILING FEE OF RS. 48,402/- CHARGED BY THE A.O. U/S 234E OF THE ACT. I N THIS REGARD, THE LD. AR OF THE ASSESSEE HAS REITERATED THE ARGUMENTS AS MADE IN THE WRITTEN SUBMISSIONS AND HAS FURTHER SUBMITTED THAT THE ISSU E IS NO MORE RES INTEGRA. HE PLACED RELIANCE ON THE DECISION OF THE ITAT, AHMADABAD DECISION IN THE CASE OF PERFECT CROPSCIENCE PVT. LT D. VS DCIT IN ITA NO. 2957 TO 2963/AHD/2015 AND THE DECISION OF THE HON'B LE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. VS UNI ON OF INDIA & ORS. (2016) 289 CTR (KAR) 602. 7. ON THE CONTRARY, THE LD DR HAS OPPOSED THE SUBMI SSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. SHE R ELIED ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT RENDERED I N THE CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (2015) 63 TAXM ANN.COM 243 (RAJ.). ITA 738/JP/2016 & ORS. ITAS_ M/S MENTOR INDIA LTD. VS DCIT WITH OTHER 10 CASES 5 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. RECENTLY THE COORDINATE BENCH OF JAIPUR ITAT IN THE CASE OF M/S. SANDEEP JHANWAR ADVISORY SERVICES P VT. LTD. VS. THE TDS CPC, GAZIABAD IN ITA NO. 722 & 723/JP/2016 FOR THE A.Y. 2013-14 / Q-3 & 4 HAS ALLOWED THE APPEAL OF THE ASSESSEE BY OB SERVING AS UNDER:- 3.5. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE C ASE LAWS RELIED UPON BY THE LD. COUNSEL. WE FIND MERIT INTO THE CONTENTION OF LD. COUNSEL THAT HE JURISDICTIONAL HI GH COURT HAS DECIDED THE VALIDITY OF SECTION 234E, BUT HAS NO T DECIDE THE ISSUE OF POWER OF AO FOR LEVY OF TAX UND ER SECTION 234E IN THE JUDGMENT RENDERED IN THE CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND OTHERS (SUPRA) AS REL IED BY LD. CIT (A). WE HAVE CONSIDERED THE RECENT DECIS ION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF SHRI FA THERAJ SINGHVI & ORS (SUPRA) WHEREIN THE ISSUE OF LEVY OF FEES U/S 234E ON STATEMENTS PROCESSED U/S 200A BEFORE 01.06.2015 HAS BEEN CATEGORICALLY DISCUSSED BY THE HONBLE HIGH 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 OF CIT VS. VATIKA TOWNSHIP PVT. LTD. (SUPRA) WHEREIN THE HONBLE APEX ITA 738/JP/2016 & ORS. ITAS_ M/S MENTOR INDIA LTD. VS DCIT WITH OTHER 10 CASES 6 COURT HAS DISCUSSED IN DETAIL THE GENERAL PRINCIPLE OF CONCERNING RETROSPECTIVELY AND HELD THAT UNLESS CON TRARY INTENTION APPEARS, A LEGISLATION IS PRESUMED NOT TO HAVE A RETROSPECTIVE OPERATION. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF HONBLE SUPREME COURT AND HONBLE KARNATAKA HIGH COURT, WE SET ASIDE THE ORDER OF LD. CIT (A) AND 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 ASSES SEE ARE ALLOWED. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (SUPRA) HAS DECIDED THE ISSUE OF VIRES OF SECTION 234E OF THE ACT. THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. VS UNION OF INDIA & ORS. (SUPRA) HAS HELD THAT THE DEMAND U/S 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE U/S 234E COULD NOT BE MADE IN PURPORTED EXER CISE OF POWER U/S 200A FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YE ARS PRIOR TO 1 ST JUNE, 2015. WHEN THE INTIMATION OF THE DEMAND NOTIC ES U/S 200A IS HELD TO BE WITHOUT AUTHORITY OF LAW SO FAR AS IT RELATES T O COMPUTATION AND DEMAND OF FEE U/S 234E, THE QUESTION OF FURTHER SCR UTINY FOR TESTING THE CONSTITUTIONAL VALIDITY OF SECTION 234E WOULD BE REN DERED AS AN ACADEMIC EXERCISE. WE FIND THAT THE HONBLE JURISDI CTIONAL HIGH COURT IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (SUPRA) HAS ITA 738/JP/2016 & ORS. ITAS_ M/S MENTOR INDIA LTD. VS DCIT WITH OTHER 10 CASES 7 ALSO CONSIDERED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA (201 5) 229 TAXMAN 596 WHEREIN THE HON'BLE HIGH COURT HAS DECIDED THE NATUR E OF DEMAND. THE HON'BLE HIGH COURT HAS HELD THAT SECTION 234E OF TH E ACT IS NOT PUNITIVE IN NATURE BUT A FEE WHICH IS A FIXED CHARGE FOR THE EXTRA SERVICE WHICH THE DEPARTMENT HAS TO PROVE DUE TO THE LATE FILING OF THE TDS STATEMENTS. HENCE FROM BOTH THE DECISIONS RELIED UP ON BY THE LD. DR, THE ISSUE OF POWER OF IMPOSING LATE FEE IS NOT DECID ED BUT THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHV I & ORS. VS. UNION OF INDIA & ORS. (SUPRA) HAS DECIDED THE ISSUE IN FAVOU R OF THE ASSESSEE AND HELD THAT THE LATE FEE U/S 234E OF THE ACT HAS RAIS ED VIDE IMPUGNED DEMAND NOTICE U/S 200A OF THE ACT. WE FIND FORCE IN THE CONTENTION OF THE LD. AR OF THE ASSESSEE. IF THERE IS CONFLICTING VIEWS TAKEN BY THE TWO HON'BLE COURTS, THEN THE VIEW, WHICH FAVOURS THE ASS ESSEE SHOULD BE ADOPTED. IN THIS REGARD, THE LD AR OF THE ASSESSEE HAS RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F CIT VS. VATIKA TOWNSHIP P. LTD. (2014) 367 ITR 466 (SC). IN VIEW OF TH E DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP (SUPRA), THE DEMAND SO RAISED ARE DIRECTED TO BE DELETED. ITA 738/JP/2016 & ORS. ITAS_ M/S MENTOR INDIA LTD. VS DCIT WITH OTHER 10 CASES 8 SIMILARLY IDENTICAL FINDINGS HAVE ALSO BEEN GIVEN IN ALL THE APPEALS OF OTHER ASSESSMENT YEARS. 9. IN THE RESULT, ALL THE APPEALS OF THE ALL THE AS SESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2016. SD/- SD/- HKKXPAN DQY HKKJR (BHAGCHAND) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16 TH DECEMBER, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS- M/S MENTOR INDIA LIMITED/ SHRI SITA RAM SHARMA/SHRI RICKY MATHUR/ M/S JYOTI VIDHYAPEETH TRU ST, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE DCIT, CENTRALISED PROCESSING CELL - TDS, GAZIABAD. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 738 TO 748/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR