MARUDHAR FOODS P.LTD, MUMBAI V. DCIT CPC-TDS, GHAZIABAD

ITA 7581/MUM/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3438 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 26-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MADHUSUDHAN
• Keywords: TDS
• Section: 234E; 200A; 246A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE S/SHRI SAKTIJIT DEY, JUDICIAL MEMBER & MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.7581/MUM/2016 ASSESSMENT YEAR 2013-14 MARUDHAR FOODS P. LTD., 10/11, 201/203 KOTAK BHAVAN, NARSI NATHA STREET, MASJID BUNDER, MUMBAI 400 009. PAN AADCM3223B VS. D CIT CPC - TDS , GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI K MADHUSUDHAN DATE OF HEARING : 0 3 . 1 0.201 9 DATE OF PRONOUNCEMENT : 11 . 10 .2019 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER, D ATED 21.10.2016, OF LEARNED CIT(A)-13, MUMBAI, CONFIRMING LEVY OF FEE U /S 234E OF THE ACT FOR THE SECOND QUARTER OF F Y 2012-13. 2. BRIEFLY, THE FACTS ARE, WHILE PROCESSING STATEME NTS OF TDS FILED BY THE ASSESSEE FOR THE F.Y. 2012-13, THE ASSESSING OFFICE R NOTICED THAT ASSESSEE HAD NOT FILED SOME OF THE STATEMENTS OF TDS WITHIN THE DUE DATE PRESCRIBED UNDER THE ACT. ACCORDINGLY, IN THE ORDER PASSED U/ S. 200A OF THE ACT, HE CHARGED FEE U/S. 234E OF THE ACT FOR AN AMOUNT OF R S 18,850/- FOR SECOND QUARTER AND AMOUNT OF RS 31,600/- FOR THIRD QUARTER OF F.Y. 2012-13, AGGREGATING TO RS 50,450/-. THOUGH, THE ASSESSEE C HALLENGED THE LEVY OF FEE U/S. 234E OF THE ACT BY FILING APPEAL BEFORE LEARNE D CIT(A), HOWEVER, HE ITA NO.7581/MUM/2016 MARUDHAR FOODS P LTD 2 SUSTAINED THE LEVY OF FEE U/S. 234E ON THE REASONIN G THAT LEVY OF FEE U/S. 234E OF THE ACT BEING NOT IN THE NATURE OF ADJUSTME NT, ASSESSEE IS NOT ELIGIBLE TO FILE AN APPEAL U/S. 246A OF THE ACT. ACCORDINGL Y, HE DISMISSED THE APPEAL FILED BY THE ASSESSEE. 3. WHEN THE APPEAL WAS CALLED FOR HEARING NO ONE WA S PRESENT ON BEHALF OF THE ASSESSEE INSPITE OF ISSUANCE OF HEARING NOTI CE THROUGH REGISTERED POST WITH AD. IT IS FURTHER NOTED THAT ON EARLIER OCCAS IONS ALSO THE ASSESSEE WENT UNREPRESENTED WHEN THE APPEAL WAS POSTED FOR HEARIN G. UNDER THESE CIRCUMSTANCES, WE PROCEED TO DISPOSE OF THE PRESENT APPEAL EXPARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DR AND ON THE BA SIS OF MATERIAL AVAILABLE ON RECORD. 5. WE HAVE HEARD THE LEARNED DR AND PERUSED THE MAT ERIAL ON RECORD. THE BASIC PREMISE ON WHICH THE ASSESSEE HAS CHALLEN GED LEVY OF FEE U/S 234E OF THE ACT, AS REVEALED FROM THE GROUNDS RAISED IS THE ASSESSING OFFICER WAS NOT VESTED WITH ANY AUTHORITY TO LEVY FEE U/S. 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TDS U/S. 200A PRIOR TO INSERTION OF CLAUSE (C) BY FINANCE ACT, 2015 W.E.F. 01.06.2015. ON A CAREFUL EXAMINATION OF THE RELEVANT STATUTORY PROVISION, IT IS EVIDENT, THOUGH SECTION 234EOF THE ACT PROVIDING FOR LEVY OF FEE IN CASE OF DELAYED FILING OF STATEMENT OF TDS WAS INTRODUCED TO THE STATUTE BY THE FINANCE ACT, 2012, W.E.F. 01.07.2012, HOWEVER, NO CORRESPONDING AMENDMENT WAS MADE TO PRO VISION OF SECTION 200A OF THE ACT. ONLY BY FINANCE ACT, 2015 CLAUSE (C) WAS INTRODUCED TO SECTION 200A PROVIDING FOR LEVY OF FEE U/S 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TDS U/S. 200A OF THE ACT. FURTHER , THE AFORESAID AMENDMENT TO SECTION 200A WAS MADE EFFECTIVE FROM 0 1.06.2015. THUS, ADMITTEDLY, PRIOR TO THE AFORESAID AMENDMENT, THE A SSESSING OFFICER HAD NO AUTHORITY IN LAW TO LEVY FEE U/S. 234E WHILE PROCES SING THE STATEMENT OF TDS U/S. 200A. INCIDENTALLY, IN THE FACTS OF THE PRESE NT CASE, NOT ONLY THE PERIOD ITA NO.7581/MUM/2016 MARUDHAR FOODS P LTD 3 FOR WHICH FEE U/S. 234E HAS BEEN LEVIED IS PRIOR TO 01.06.2015, BUT EVEN THE ORDER U/S. 200A WAS PASSED BY THE ASSESSING OFFICER PRIOR TO THE AFORESAID AMENDMENT TO SECTION 200A. NOW IT IS FAIRLY WELL-S ETTLED BY VIRTUE OF VARIOUS JUDICIAL PRONOUNCEMENTS ON THE ISSUE THAT AMENDMENT TO SECTION 200A PROVIDING FOR LEVY OF FEE U/S. 234E OF THE ACT, WOU LD APPLY PROSPECTIVELY TO A PERIOD FOLLOWING AFTER 01.06.2015. THAT BEING THE CASE, THE LEVY OF FEE U/S. 234E OF THE ACT IN THE FACTS OF THE PRESENT CASE IS INVALID. ACCORDINGLY, WE DELETE THE LATE FILING FEE OF RS 50,450/-. GROUNDS ARE ALLOWED. 9. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF OCTOBER, 2019. SD/- SD/- (MANOJ KUMAR AGGARWAL) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI; DATED : 11 TH OCTOBER, 2019. SA COPY OF THE ORDER FORWARDED TO : 1. THE APP E L L ANT. 2. THE RESPONDENT. 3. T HE CIT(A), MUMBAI. 4. THE CIT 5. DR, B BENCH, ITAT, MUMBAI BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI