SHRI UTTAM CHAND GANGWAL, AJMER V. ASSISTANT COMMISSIONER OF INCOME TAX, CPC (TDS), GHAZIABAD

ITA 764/JPR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6013 (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
• Department Lawyers: J C KULHARI

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HE-A, 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 VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 764/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2015-16 (26Q, 4TH QTR) SHRI UTTAM CHAND GANGWAL M/S ADINATH STONES, LOHAGAL ROAD, NEW KAYASTH COLONY, AJMER. CUKE VS. THE ACIT, CPC (TDS), GHAZIABAD LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: JDHUO1113A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI DEVANG GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 15/01/2019 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 AGAINST THE ORDER OF LD. CIT(A), AJMER DATED 13.07.2017 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL:- 1. THE IMPUGNED ORDER PASSED U/S 200A OF THE ACT D ATED 30.07.2015 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE, THE 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 200A OF THE ACT DATED 30.07.2015 BY IMPOSING THE LATE FEES OF RS. 1 3,600/- U/S 234E OF THE ACT. THE IMPUGNED ORDER SO PASSED AND LATE FEES SO LEVIED BEING TOTALLY CONTRARY TO THE PROVISIONS 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 22 ND JULY, ITA NO. 764/JP/2017 SHRI UTTAM CHAND GANGWAL, AJMER VS. ACIT, GHAZIABAD 2 2015 FOR WHICH THE DUE DATE WAS 15 TH MAY, 2015. THE TDS RETURN WAS PROCESSED AND THE ACIT, TDS ISSUED AN INTIMATION DA TED 30 TH JULY, 2015 U/S 200A OF THE ACT IMPOSING A PENALTY OF RS. 13,600/- U/S 234E OF THE ACT FOR THE DELAY IN FILING 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 30.07.2015. WITH EFFECT FROM 01.06.201 5, 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 HA S BECOME HAS BEEN PROCESSED ON 30.07.2015, THEREFORE I AM OF THE CONS IDERED VIEW THAT ADJUSTMENT MADE UNDER SECTION 200(A)(1)(C) IN RESPE CT OF THE FEE LEVIED U/S 234E IS VALID AND IN ACCORDANCE WITH THE PROVISIONS OF LAW. HENCE THIS GROUND 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 01.06.2015, THE AS SESSING OFFICER HAD NO AUTHORITY TO LEVY FEE FOR THE PERIOD IN RESPECT OF RETURN PERTAINING TO THE PERIOD PRIOR TO 01.06.2015. IT WAS FURTHER SUBMITTED THAT THE MATTER IS SQUARELY COVERED BY THE DECISION OF THIS BENCH IN CASE OF GI TA 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 THA T THERE IS NO BASIS WITH THE ASSESSING OFFICER TO LEVY THE PENALTY U/S 234E OF T HE ACT AND THE SAME MAY KINDLY DELETED. ITA NO. 764/JP/2017 SHRI UTTAM CHAND GANGWAL, AJMER VS. ACIT, GHAZIABAD 3 5. PER CONTRA, THE LD. DR SUBMITTED THAT THE ASSES SEE HAS FILED THE QUARTERLY RETURN ON 22 ND JULY, 2015 WHICH IS WELL AFTER AMENDMENT TO THE PROVISIONS IN SECTION 200A W.E.F 01.06.2015 AND THE REAFTER AN INTIMATION HAS BEEN ISSUED ON 30 TH JULY, 2015 U/S 200A OF THE ACT IMPOSING THE PENALT Y U/S 234E OF THE ACT. IT WAS ACCORDINGLY 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 REFER 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 UNDIS PUTED FACTS ARE THAT THE ASSESSEE FILED ITS TDS RETURN (FORM 26Q) FOR TH E FOURTH QUARTER OF FINANCIAL YEAR 2012-13 ON 26.12.2012 AND THE SAME W AS PROCESSED AND INTIMATION UNDER SECTION 200A WAS ISSUED VIDE ORDER DATED 15.12.2013 MUCH PRIOR TO THE AMENDMENT TO SECTION 200A OF THE ACT W.E.F. 1.6.2015 EMPOWERING THE ASSESSING OFFICER LEVYING THE FEES U NDER SECTION 234E OF THE ACT. IT IS THEREFORE NOT A CASE OF CONTINUING DEFAULT WHERE THE ASSESSEE HAS DEFAULTED IN FURNISHING THE TDS STATEM ENT EVEN AFTER 1.6.2015 AND THEREAFTER, THE DEMAND FOR PAYMENT OF FEES UNDER SECTION 234E HAS BEEN RAISED BY THE ASSESSING OFFICER. IN CASE OF FATHERAJ SINGHVI (SUPRA), THE HONBLE KARNATAKA HIGH COURT H AS HELD THAT THE PROVISIONS OF AMENDED SECTION 200A ARE PROSPECTIVE IN NATURE. FURTHER, THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND OTHERS (SUPRA) AS RELIED BY L D. CIT (A) IS IN THE CONTEXT OF VALIDITY OF SECTION 234E, BUT NOT IN THE CONTEXT OF POWER OF AO FOR LEVY OF FEE UNDER SECTION 234E PRIOR TO 1.6.201 5. IN VIEW OF THE ABOVE, THE ASSESSING OFFICER WHILE PROCESSING THE T DS STATEMENTS FOR THE ITA NO. 764/JP/2017 SHRI UTTAM CHAND GANGWAL, AJMER VS. ACIT, GHAZIABAD 4 PERIOD PRIOR TO 01.06.2015, WAS NOT EMPOWERED TO CH ARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, THE DEMAND RAISED B Y 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 INTIMATION UNDER SECTION 200A WAS ISSUED ON 15.12.2013 MUCH PRIOR TO THE AMENDMENT TO SECTION 2 00A OF THE ACT W.E.F. 1.6.2015 EMPOWERING THE ASSESSING OFFICER LEVYING T HE FEES UNDER SECTION 234E OF THE ACT. IN THAT FACTUAL BACKGROUND, IT WAS HEL D THAT IT WAS NOT A CASE OF CONTINUING DEFAULT WHERE THE ASSESSEE HAS DEFAULTED IN FURNISHING THE TDS STATEMENT EVEN AFTER 1.6.2015 AND THEREFORE, THE DE MAND FOR PAYMENT OF FEES UNDER SECTION 234E WAS DELETED. THE SAID DECISION THEREFORE DOESNT SUPPORT THE CASE OF THE ASSESSEE. 8. IN THE INSTANT CASE, THE ASSESSEE FILED ITS TDS RETURN IN FORM NO. 26Q FOR THE QUARTER ENDED 31 ST MARCH, 2015 ON 22 ND JULY, 2015 AND THE SAME WAS PROCESSED AND AN INTIMATION DATED 30 JULY, 2015 WAS ISSUED BY THE AO U/S 200A OF THE ACT. THUS, BOTH THE FILING OF THE RETU RN OF INCOME BY THE ASSESSEE AND PROCESSING THEREOF 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 OF THE ACT. EVEN THOUGH THE QUARTERLY RETURN PERTAINS TO QUARTER ENDED 31.3.2015, THE FACT REMAINS THAT THERE IS A CONTINU ING DEFAULT EVEN AFTER 1.6.2015 AND THE RETURN WAS ACTUALLY FILED ON 22.07 .2015. THE SAID PROVISIONS CANNOT BE READ TO SAY THAT WHERE AN ASSESSEE FILE H IS RETURN 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, HOWEVER, AN ASSESSEE WHO HAS DELAYED THE FILING OF THE RETURN OF INCOME EVEN PERTAINING TO T HE PERIOD PRIOR TO 1.06.2015, HE CAN BE ABSOLVED FROM SUCH LEVY EVEN THOUGH THERE IS A CONTINUOUS DEFAULT ITA NO. 764/JP/2017 SHRI UTTAM CHAND GANGWAL, AJMER VS. ACIT, GHAZIABAD 5 ON HIS PART EVEN AFTER 1.6.2015. IN OUR VIEW, THE AO HAS ACQUIRED THE JURISDICTION TO LEVY THE FEES AS ON 1.06.2015 AND T HEREFORE, ANY RETURN FILED AND PROCESSED AFTER 1.6.2015 WILL FALL WITHIN HIS JURIS DICTION WHERE ON OCCURRENCE OF ANY DEFAULT ON PART OF THE ASSESSEE, HE CAN LEVY FE E SO MANDATED U/S 234E OF THE ACT. THEREFORE, IRRESPECTIVE OF THE PERIOD TO W HICH 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 BE ANY LEVY OF FEES AS THE ASSUMPTION OF JURISDICTION TO LEVY SUCH FEES HAVE BEEN HELD BY THE COURTS TO BE PROSPECTIVE IN NATURE. HOWEVER, WHERE THE DELAY CONTINUES BEYO ND 1.06.2015, THE AO IS WELL WITHIN HIS JURISDICTION TO LEVY FEES UNDER SEC TION 234E FOR THE PERIOD STARTING 1.06.2015 TO THE DATE OF ACTUAL FILING OF THE TDS RETURN. 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 FILING OF TH E TDS RETURN WHICH IS 22.07.2015 AND THE BALANCE FEE SO LEVIED IS 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 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI UTTAM CHAND GANGWAL, AJMER 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CPC (TDS), GHAZIABAD ITA NO. 764/JP/2017 SHRI UTTAM CHAND GANGWAL, AJMER VS. ACIT, GHAZIABAD 6 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. 764/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR