SHRI ANIL KUMAR MAHESHWARI, AJMER V. ASSISTANT COMMISSIONER OF INCOME TAX, CPC (TDS), GHAZIABAD

ITA 762/JPR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6011 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 10-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: DEVANG GARGIEYA ITP

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE , B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 762/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2015-16 (26Q, 4TH QTR) SHRI ANIL KUMAR MAHESHWARI OPP. LOC COLONY, DILWARA BY PASS, NASHIRABAD-305601, AJMER. CUKE VS. THE ACIT, CPC (TDS), GHAZIABAD LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: JDHAO 2820 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI DEVANG GARGIEYA (ITP) & SH RI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ANURADHA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 22/01/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 23/01/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED AGAINST THE ORDER OF LD. CI T(A), AJMER DATED 13.07.2017 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. THE IMPUGNED ORDER PASSED U/S 200A OF THE ACT D ATED 26.09.2015 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE, T HE SAME KINDLY BE QUASHED. 2. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FA CTS OF THE CASE IN CONFIRMING THE IMPUGNED ORDER PASSED BY THE AO U/S ITA NO. 693/JP/2018 SH. AKASH GUPTA, JAIPUR VS. ITO, JAIPUR 2 200A OF THE ACT DATED 26.09.2015 BY IMPOSING THE LA TE FEES OF RS. 26,200/- U/S 234E OF THE ACT. THE IMPUGNED ORDER SO PASSED AND LATE FEES SO LEVIED BEING TOTALLY CONTRARY TO THE P ROVISIONS OF LAW AND FACTS KINDLY BE QUASHED. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED HIS TDS RETURN IN FORM NO. 26Q FOR THE QUARTER ENDED 31 ST MARCH, 2015 ON 23 RD SEPTEMBER, 2015 FOR WHICH THE DUE DATE WAS 15 TH MAY, 2015. THE TDS RETURN WAS PROCESSED AND THE ACIT, TDS ISSUED A N INTIMATION DATED 26 TH SEPTEMBER, 2015 U/S 200A OF THE ACT IMPOSING A PEN ALTY OF RS. 26,200/- U/S 234E OF THE ACT FOR THE DELAY IN F ILING THE TDS RETURN. 3. ON APPEAL, THE LD. CIT(A) HAS CONFIRMED THE SAID LEVY AND HIS FINDINGS ARE AS UNDER:- I HAVE GONE THROUGH THE ORDER, STATEMENT OF FACTS, GROUNDS OF APPEAL AND WRITTEN SUBMISSIONS CAREFULLY. IT IS SEEN THAT FROM THE INTIMATION ISSUED U/S 200A THAT THE TDS STATEMENT FOR THE 4 TH QUARTER OF THE F.Y 2014-15 WAS PROCESSED ON 18.09.2015. WITH EFFECT FR OM 01.06.2015, ADJUSTMENTS IN RESPECT OF THE FEE PAID U/S 234E CAN BE MADE UNDER CLAUSE (C) OF SUB-SECTION 1 OF SECTION 200A. AS THE TDS RETURN OF THE APPELLANT HAS BECOME HAS BEEN PROCESSED ON 18.09.20 15, THEREFORE I AM OF THE CONSIDERED VIEW THAT ADJUSTMENT MADE UNDE R SECTION 200(A)(1)(C) IN RESPECT OF THE FEE LEVIED U/S 234E IS VALID AND IN ACCORDANCE WITH THE PROVISIONS OF LAW. HENCE THIS G ROUND OF APPEAL IS DISMISSED. 4. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED PRIOR TO AMENDMENT IN SECTION 200A OF THE ACT W.E.F 01.06.20 15, THE ASSESSING ITA NO. 693/JP/2018 SH. AKASH GUPTA, JAIPUR VS. ITO, JAIPUR 3 OFFICER HAD NO AUTHORITY TO LEVY FEE FOR THE PERIOD IN RESPECT OF RETURN PERTAINING TO THE PERIOD PRIOR TO 01.06.2015. IT WA S FURTHER SUBMITTED THAT THE MATTER IS SQUARELY COVERED BY THE DECISION OF THIS BENCH IN CASE OF GITA STAR HOTELS & RESORTS PRIVATE LTD., JAIPUR VS. DCIT, CPC, TDS, GHAZIABAD (IN ITA NO. 14/JP/2017 DATED 29.10.2018). IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO BASIS WITH T HE ASSESSING OFFICER TO LEVY THE PENALTY U/S 234E OF THE ACT AND THE SAM E MAY KINDLY DELETED. 5. PER CONTRA, THE LD. DR SUBMITTED THAT THE ASSES SEE HAS FILED THE QUARTERLY RETURN ON 23 RD SEPTEMBER, 2015 WHICH IS WELL AFTER AMENDMENT TO THE PROVISIONS IN SECTION 200A W.E.F 01.06.2015 AND THEREAFTER AN INTIMATION HAS BEEN ISSUED ON 26 TH SEPTEMBER, 2015 U/S 200A OF THE ACT IMPOSING THE PENALTY U/S 234E OF THE ACT. IT WAS AC CORDINGLY SUBMITTED THAT THERE IS NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE SAID LEVY OF THE PENALTY AND ACCORDINGLY, THE ORDER OF THE LD. CIT(A) SHOULD BE CONFIRMED. 6. IN GITA STAR HOTELS & RESORTS P LTD. (SUPRA), W E HAVE EXAMINED THIS MATTER AT LENGTH AND IT WOULD BE USEFUL TO REF ER TO THE FINDINGS WHICH ARE REPRODUCED AT PARA 8 AS UNDER:- 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, THE UNDISPUTED FACTS ARE THAT THE ASSESSEE FILED ITS TDS RETURN (F ORM 26Q) FOR THE FOURTH QUARTER OF FINANCIAL YEAR 2012-13 ON 26.12.2 012 AND THE SAME WAS PROCESSED AND INTIMATION UNDER SECTION 200 A WAS ISSUED VIDE ORDER DATED 15.12.2013 MUCH PRIOR TO TH E AMENDMENT TO SECTION 200A OF THE ACT W.E.F. 1.6.2015 EMPOWERI NG THE ITA NO. 693/JP/2018 SH. AKASH GUPTA, JAIPUR VS. ITO, JAIPUR 4 ASSESSING OFFICER LEVYING THE FEES UNDER SECTION 23 4E OF THE ACT. IT IS THEREFORE NOT A CASE OF CONTINUING DEFAULT WH ERE THE ASSESSEE HAS DEFAULTED IN FURNISHING THE TDS STATEM ENT EVEN AFTER 1.6.2015 AND THEREAFTER, THE DEMAND FOR PAYME NT OF FEES UNDER SECTION 234E HAS BEEN RAISED BY THE ASSESSING OFFICER. IN CASE OF FATHERAJ SINGHVI (SUPRA), THE HONBLE KARNA TAKA HIGH COURT HAS HELD THAT THE PROVISIONS OF AMENDED SECTI ON 200A ARE PROSPECTIVE IN NATURE. FURTHER, THE DECISION OF TH E HONBLE RAJASTHAN HIGH COURT IN CASE OF M/S. DUNDLOD SHIKSH AN SANSTHAN AND OTHERS (SUPRA) AS RELIED BY LD. CIT (A) IS IN T HE CONTEXT OF VALIDITY OF SECTION 234E, BUT NOT IN THE CONTEXT OF POWER OF AO FOR LEVY OF FEE UNDER SECTION 234E PRIOR TO 1.6.2015. I N VIEW OF THE ABOVE, THE ASSESSING OFFICER WHILE PROCESSING THE T DS STATEMENTS FOR THE PERIOD PRIOR TO 01.06.2015, WAS NOT EMPOWER ED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, THE DEMA ND RAISED BY WAY OF CHARGING THE FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. 7. IN THE AFORESAID DECISION, THE TDS RETURN (FORM 26Q) FOR THE FOURTH QUARTER OF FINANCIAL YEAR 2012-13 WAS FILED BY THE ASSESSEE ON 26.12.2012 AND THE SAME WAS PROCESSED AND INTIMATIO N UNDER SECTION 200A WAS ISSUED ON 15.12.2013 MUCH PRIOR TO THE AME NDMENT TO SECTION 200A OF THE ACT W.E.F. 1.6.2015 EMPOWERING THE ASSESSING OFFICER LEVYING THE FEES UNDER SECTION 234E OF THE ACT. IN THAT FACTUAL BACKGROUND, IT WAS HELD THAT IT WAS NOT A CASE OF C ONTINUING DEFAULT WHERE THE ASSESSEE HAS DEFAULTED IN FURNISHING THE TDS STATEMENT EVEN AFTER 1.6.2015 AND THEREFORE, THE DEMAND FOR PAYMEN T OF FEES UNDER ITA NO. 693/JP/2018 SH. AKASH GUPTA, JAIPUR VS. ITO, JAIPUR 5 SECTION 234E WAS DELETED. THE SAID DECISION THEREF ORE DOESNT SUPPORT THE CASE OF THE ASSESSEE. 8. IN THE INSTANT CASE, THE ASSESSEE FILED BY TDS R ETURN IN FORM NO. 26Q FOR THE QUARTER ENDED 31 ST MARCH, 2015 ON 23 RD SEPTEMBER, 2015 AND THE SAME WAS PROCESSED AND AN INTIMATION DATED 26 TH SEPTEMBER, 2015 WAS ISSUED BY THE AO U/S 200A OF THE ACT. THU S, BOTH THE FILING OF THE TDS RETURN BY THE ASSESSEE AND PROCESSING THERE OF HAS HAPPENED MUCH AFTER 1.6.2015 I.E., THE DATE OF ASSUMPTION OF JURISDICTION BY THE AO U/S 200A(1)(C) TO LEVY FEES UNDER SECTION 234E O F THE ACT. EVEN THOUGH THE QUARTERLY RETURN PERTAINS TO QUARTER END ED 31.3.2015, THE FACT REMAINS THAT THERE IS A CONTINUING DEFAULT EVE N AFTER 1.6.2015 AND THE RETURN WAS ACTUALLY FILED ON 23.09.2015. THE SA ID PROVISIONS CANNOT BE READ TO SAY THAT WHERE AN ASSESSEE FILE HIS RETU RN OF INCOME FOR THE PERIOD FALLING AFTER 1.6.2015 AND THERE IS A DELAY ON HIS PART TO FILE THE RETURN IN TIME, HE WILL SUFFER THE LEVY OF FEES, HO WEVER, AN ASSESSEE WHO HAS DELAYED THE FILING OF THE RETURN OF INCOME EVEN PERTAINING TO THE PERIOD PRIOR TO 1.06.2015, HE CAN BE ABSOLVED FROM SUCH LEVY EVEN THOUGH THERE IS A CONTINUOUS DEFAULT ON HIS PART EV EN AFTER 1.6.2015. IN OUR VIEW, THE AO HAS ACQUIRED THE JURISDICTION TO L EVY THE FEES AS ON 1.06.2015 AND THEREFORE, ANY RETURN FILED AND PROCE SSED AFTER 1.6.2015 WILL FALL WITHIN HIS JURISDICTION WHERE ON OCCURREN CE OF ANY DEFAULT ON PART OF THE ASSESSEE, HE CAN LEVY FEE SO MANDATED U /S 234E OF THE ACT. THEREFORE, IRRESPECTIVE OF THE PERIOD TO WHICH THE QUARTERLY RETURN PERTAINS, WHERE THE RETURN IS FILED AFTER 1.6.2015, THE AO CAN LEVY FEE UNDER SECTION 234E OF THE ACT. AT THE SAME TIME, IN TERMS OF DETERMINING THE PERIOD FOR WHICH FEES CAN BE LEVIED , ONLY SAVING COULD BE THAT FOR THE PERIOD OF DELAY FALLING PRIOR TO 1. 06.2015, THERE COULD NOT ITA NO. 693/JP/2018 SH. AKASH GUPTA, JAIPUR VS. ITO, JAIPUR 6 BE ANY LEVY OF FEES AS THE ASSUMPTION OF JURISDICTI ON TO LEVY SUCH FEES HAVE BEEN HELD BY THE COURTS TO BE PROSPECTIVE IN N ATURE. HOWEVER, WHERE THE DELAY CONTINUES BEYOND 1.06.2015, THE AO IS WELL WITHIN HIS JURISDICTION TO LEVY FEES UNDER SECTION 234E FOR TH E PERIOD STARTING 1.06.2015 TO THE DATE OF ACTUAL FILING OF THE TDS R ETURN. IN LIGHT OF THE SAME, IN THE INSTANT CASE, THE LEVY OF FEES UNDER S ECTION 234E IS UPHELD FOR THE PERIOD 1.06.2015 TO THE DATE OF ACTUAL FILI NG OF THE TDS RETURN WHICH IS 23.09.2015 AND THE BALANCE FEE SO LEVIED I S HEREBY DELETED. IN THE RESULT, THE GROUND OF APPEAL IS PARTLY ALLOWED. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/01/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23/01/2019 *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ANIL KUMAR MAHESHWARI, AJMER. 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CPC (TDS), GHAZIABAD 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 762/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR