Krishi Upaj Mandi Samiti, Manwar District Dhar V. Deputy Commissioner of Income Tax-CPC TDS, Ghaziabad

ITA 8/Ind/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3654 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 01-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SHREYA JAIN A RS
• Keywords: TDS
• Section: 234E; 200A; 201; 192

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER VIRTUAL HEARING ITA NO.08/IND/2018 ASSESSMENT YEAR:2015-16 KRISHI UPAJ MANDI SAMITI MANWAR DISTT. DHAR / VS. DCIT - CPC - TDS, GHAZIABAD (APPELLANT) (R ESPONDENT ) P.A. NO. BPLK01589A APPELLANT BY SHRI PRAKASH JAIN & MS. SHREYA JAIN, AR S REVENUE BY SHRI P . K . SINGI , SR. DR DATE OF HEARING: 28.07.2021 DATE OF PRONOUNCEMENT: 05.10.2021 / O R D E R PER MANISH BORAD, A.M: THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF THE ASSESSEE FOR ASSESSMENT YEAR 2015-16 IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-I (IN SHORT LD. CIT], INDORE DATED 25.09.2017 WHICH ARE ARISING OU T OF THE ORDER U/S 200A OF THE INCOME TAX ACT 1961(IN SHORT THE ACT) DATED KRISHI UPAJ MANDI SAMITI 2 04.12.2015 FRAMED BY DCIT (CPC)-TDS GHAZIABAD. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THE ORDER OF THE LD. CIT(A)-1, INDORE IS UNJUSTIFIE D AND IS BEYOND THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LD. CIT(A)-1, INDORE HAS ERRED IN PASSING THE O RDER U/S 200A OF THE INCOME TAX ACT,1961, THE LD. CIT(A)-1 HAS OVERLOOKE D THE SECTION 200A OF THE ACT AND DISALLOWED THE CLAIM OF THE ASSESSEE TOWARDS THE NON- APPLICABILITY SECTION 234E OF INCOME TAX ACT, 1961 AND IMPOSED A LATE FILING FEE OF RS.1,14,800/-. 2. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THE ASSESSEE IS REQUIRED TO DEDUCT AND DEPOSIT TAX DEDU CTED AT SOURCE AS AND WHERE APPLICABLE. THE DUE DATE FOR FILING 4 TH QT RETURNS FOR F.Y. 2013-14 WAS 15.05.2014. THE ASSESSEE FILED THI S RETURN ON 10.12.2015 I.E. A DELAY BY 564 DAYS. CENTRAL PROCES S CELL (CPC) VIDE INTIMATION DATED 14.12.2014 IMPOSED LATE FEE U/S 23 4E OF THE ACT AT RS.1,14,800/-. ASSESSEE CHALLENGED THIS ACTION F OR LEVY OF FEE U/S 234E OF THE ACT BEFORE LD. CIT(A) BUT FAILED TO SUC CEED. 3. NOW ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED REFERRING TO THE FOL LOWING WRITTEN SUBMISSIONS: WITH REFERENCE TO THE HEARING OF ABOVE REFERRED APP EAL WE HAVE TO SUBMIT THAT SHORT FACTS OF THE CASE ARE AS UNDER:- 1. THE APPELLANT IS KRISHI UPAJ MANDI SAMITHI, MANAWAR ESTABLISHED UNDER KRISHI UPAJ MANDI SAMITI 3 THE M.P. KRISHI UPAJ MANDI ADHINIYAM 1972 FOR PROVI DING BETTER REGULATION OF BUYING AND SELLING OF AGRICULTURAL PRODUCE AND E STABLISHMENT AND PROPER ADMINISTRATION OF AGRICULTURE PRODUCED IN THE STATE OF MADHYA PRADESH. THE MAIN PURPOSE OF THE ACT UNDER WHICH THE KRISHI UPAJ MANDI SAMITI ARE ESTABLISHED TO PROTECT THE INTEREST OF THE FARMERS AND ENSURE THAT THEY ARE NOT EXPLOITED. 2. FOR THE FINANCIAL YEAR 2013-14 (QTR.IV) THE DUE DAT E FOR FILING OF TDS RETURN IN FORM 26Q WAS 15 TH MAY, 2014 BUT THE APPELLANT HAS FILED THE SAME ON 10.12.2015 I.E. BY DELAY OF 574 DAYS THUS THE CPC V IDE INTIMATION DATED 14.12.2015 IMPOSED LATE FEE U/S 234E AT RS.1,14,800/-. 3. AGGRIEVED BY THE INTIMATION OF CPC FOR IMPOSING LAT E FEE OFRS.I,14,800/-, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A)- I, INDORE WHO VIDE ORDER DATED 25.9.2016 BY RELYING ON THE DECISION OF HON'B LE GUJARAT HIGH COURT IN THE CASE OF RAJESH KOURANI CONFIRMED THE LATE FE E OFRS.L,14,800/- LEVIED BY THE CPC. BEING DISSATISFIED BY THE ORDER OF LD. CIT(A) ASSES SEE PREFERRED PRESENT APPEAL BEFORE YOUR HONOURS. NOW OUR HUMBLE SUBMISSI ONS ARE AS UNDER; I) THE LATE FEE IS RELATED TO THE Q4 OF THE FINANCIAL YEAR 2013-14 THAT IS FOR THE PERIOD 01.01.2014 TO 31.03.2014 THUS IT IS RELE VANT PRIOR TO 01.06.2015 AND DURING THAT PERIOD NO AUTHORITY IS E MPOWER TO LEVY LATE FEE, THEREFORE IT IS HUMBLY PRAYED THAT LATE FEE OF RS. 1,14,8001- BE DELETED IN VIEW OF THE DECISION OF HON'BLE BENCH IN THE CASE OF STATE BANK OF INDIA & OTHERS VIS DY. CIT (TDS) (2018) 33ITJ845 (IND). WITHOUT PREJUDICE TO THE ABOVE WE HAVE TO SUBMIT AS UNDER :- II) EVEN AFTER AMENDMENT OF SECTION 200A THE CPC I S NOT EMPOWER TO LEVY LATE FEE WHICH WILL BE CLEAR FROM THE BARER READING OF THE NEWLY INSERTED CLAUSES (C) TO (E) IN SUB-SECTION (1) OF SECTION 20 0A BY THE FINANCE ACT, 2015 W.E.F 01.06.2015 WHICH WILL BE CLEAR FROM THE BARER READING OF THESE SUB CLAUSES AND SUB-SECTION (2) OF SECTION 200A THE SAME ARE REPRODUCED HEREIN UNDER:- 200A(L) (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANC E WITH THE PROVISIONS OF SECTION 234E; (D) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE , TO THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF THE AMOUNT COMPUT ED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST ANY AMOUNT PAID UNDER SECTIO N 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WA Y OF TAX OR INTEREST OR FEE; (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND (F) THE AMOUNT F REFUND DUE TO THE DEDUCTOR IN PURS UANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR) THE SUB-SECTION (2) OF SECTION 200A EMPOWER TO CPC TO AUTHORIZED CPC KRISHI UPAJ MANDI SAMITI 4 ONLY FAR PROCESSING OF STATEMENT AND DETERMINE THE TAX PAYABLE OR THE REFUND DUE TO THE DEDUCTOR WHICH WILL BE CLEAR FROM THE SAID SUB-SECTION. THE SAME IS REPRODUCED HEREIN UNDER:- 'FOR THE PURPOSES OF PROCESSING OF STATEMENT UNDER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALIZED PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE HE TA X PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE S AID SUB-SECTION, '']; FROM THE ABOVE IT IS CLEAR THE CPC IS EMPOWER TO PR OCESS TDS STATEMENT AND DETERMINE THE TAX PAYABLE AND REFUND DUE BUT DO NOT EMPOWER TO LEVY LATE FEE BECAUSE THE TAX DOES NOT INCLUDE THE INTER EST PENALTY AND LATE FEE WHICH IS CLEAR FROM THE BARER READING OF SECTION 2( 43) OF THE ACT WHICH IS REPRODUCED AS UNDER; 'TAX' IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE I' DAY OF APRIL, 1965, AND ANY SUBSEQUENT ASSESSMENT YEAR MEANS INCO ME-TAX CHARGEABLE UNDER THE PROVISIONS OF THIS ACT, AND IN RELATION TO ANY OTHER ASSESSMENT YEAR INCOMETAX AND SUPER-TAX CHARGEABLE UNDER THE PROVISIONS OF THIS ACT PRIOR TO THE AFORESAID DATE AND IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE R DAY OF APRIL, 2006, AND ANY SUBSEQUENT ASSESSMENT YEAR INCLUDES THE FRINGE BENE FIT TAX PAYABLE UNDER SECTION 115WA'. BOMBAY HIGH COURT IN THE CASE OF CIT VS. ORYS FINAN CE AND INVESTMENT PVT. LTD (INCOME TAX APPEAL NO. 01 OF 2015) (1S1 JULY, 2017) HELD THAT 'TAX IN ARREARS WOULD NOT INCLUDE THE INTEREST' IN DINESH T TAILOR V. TAX RECOVERY OFFICER (2010) 326ITR 85, THE BOMBAY HIGH COURT HELD THAT IN 'SECTION 179(1), THE EXPRES SION 'TAX DUE' AND, FOR THAT MATTER THE EXPRESSION 'SUCH TAX' MEAN A TAX AS DEFINED FOR THE PURPOSES OF THE ACT BY SECTION 2(43); 'TAX DUE' DOE S NOT COMPREHEND WITHIN ITS AMBIT A PENALTY. ' HIGH COURT OF KARNATAKA IN HE CASE OF H. EMBRAHIM & ORS. VS. DEPUTY COMMISSIONER OF INCOME TAX &ANR. (2011) 332 ITR 012 2 HELD THAT THE COMPONENT 'INCOME TAX' DOES NOT INCLUDE PAYMENT OF PENALTY AS WELL AS INTEREST. ' HIGH COURT OF DELHI IN THE CASE OF SANJ AY GHAI VS. ASSISTANT COMMISSIONER OF INCOME TAX & ORS. (2013) 352ITR 0468 HELD THAT 'THE COURT IS OF THE OPINION THAT THE STRUCTURE AND CONS TRUCT OF THE ACT HAS CONSCIOUSLY USED DIFFERENT WORDS TO CREATE CONSTRUC TIVE LIABILITY ON THIRD PARTIES, IN THE CASE OF DEFAULT IN PAYMENT OF TAXES BY AN ASSESSEE. THE TREATMENT OF THE SAME SUBJECT MATTER BY USING DIFFE RENT TERMS - IN SOME INSTANCES EXPANSIVE AND IN OTHERS, RESTRICTIVE, MEA N THAT THE COURT HAS TO ADOPT A CIRCUMSPECT APPROACH AND LIMIT ITSELF TO TH E WORDS USED IN THE GIVEN CASE (IN THE PRESENT CASE, 'TAX DUE' UNDER SE CTION 179) AND NOT 'TRAVEL OUTSIDE THEM ON A VOYAGE OF DISCOVERY' (MAG OR & ST. MELLONS RDS V NEWPORT CORPORATION 1951 (2) ALL ER 839). THEREFORE , IT IS HELD THAT THE PETITIONER CANNOT BE MADE LIABLE FOR ANYTHING MORE THAN THE TAX (DEFINED UNDER SECTION 2(43). ' KRISHI UPAJ MANDI SAMITI 5 FROM THE ABOVE DECISION IT IS CLEAR THAT TAX DOES N OT INCLUDE LATE FEE U/S 200A(2) AND THEREFORE CP'C GHAZIABAD IS NOT EMPOWER TO LEVY LATE FEE EVEN AFTER THE AMENDMENT APPLICABLE WITH EFFECT FRO M 1.6.2015. IN VIEW OF ABOVE FACTS IT IS PRAYED THAT THE LATE FEE OFRS.L,1 4,800/-LEVIED BY CPC GHAZIABAD BE DELETED. III) LASTLY IT IS SUBMITTED THAT IF OUR ABOVE SUBM ISSION MENTIONED IN PARA (I) & (II) IS NOT ACCEPTED BY THE HON'B1E BENCH IN THAT C ASE IT IS SUBMITTED THAT SECTION 200A(1) IS AMENDED W.E.F. 1. 6.2015, THUS THE LATE FEE BE LEVIED FOR THE PERIOD 1.6.2015 TO 10.12.2015 I.E. FOR 192 DAYS INSTEAD OF574 DAYS LEVIED BY THE CPC, 4. PER CONTRA LD. DR SUPPORTED THE ORDER OF LD. CI T(A). 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE ASSESSEE HAS CHALLENGED THE FINDING OF LD. CIT(A) CONFIRMING THE LEVY OF FEE U/S 234E OF THE ACT AT R S.1,14,800/-. IT IS NOT IN DISPUTE THAT THE ASSESSEE DID NOT FILE THE R ETURN FOR QUARTER 4 TH FOR F.Y. 2013-14 ON TIME AND IT WAS FILED WITH THE DELAY OF 574 DAYS AND CPC VIDE ITS INTIMATION DATED 14.12.2015 L EVIED FEE U/S 234E OF THE ACT AT RS.1,14,800/-. 6. WE FIND THAT SIMILAR ISSUE ABOUT THE LEVY OF FEE U/S 234E OF THE ACT BEFORE AND AFTER THE AMENDMENT BROUGHT IN BY TH E FINANCE ACT 2015 W.E.F. 1 ST JUNE 2015 HAS COME UP BEFORE THIS TRIBUNAL AND FOLLOWING VIEW HAS BEEN CONSISTENTLY TAKEN BY THIS TRIBUNAL. 14. NOW COMING TO THE LAST CONTENTION AS WELL AS MA IN ISSUE THAT WHETHER IN ALL THE REMAINING CASES EXCEPT THAT OF ROHIT SINGH IN ITANO.422/IND/2019 WHETHER THE LD. CIT(A) WAS KRISHI UPAJ MANDI SAMITI 6 JUSTIFIED IN LEVYING THE FEE U/S 234E OF THE ACT. T HE COMMON FACT IN ALL THESE CASES ARE THAT THE DATE OF FILING TDS RETURN AS WELL AS DATE OF CPC ORDER IS AFTER 01.06.2015. W E OBSERVE THAT RECENTLY COORDINATE BENCH OF JAIPUR IN THE CASE OF SHRI UTTAM CHAND GANGWAL VS ACIT IN ITA NO. 764/JP/2017 DATED 23/01/2019 ADJUDICATED THE SIMILA R ISSUE OF LEVY OF FEE U/S 234E OF THE ACT IN THE TDS RETURN A ND THE CPC ORDER PASSED AFTER 01.06.2015. FOLLOWING DECISION WAS REN DERED BY THE COORDINATE BENCH: IN THE INSTANT CASE, THE ASSESSEE FILED ITS TDS RET URN IN FORM NO. 26Q FOR THE QUARTER ENDED 31ST MARCH, 2015 ON 22ND JULY , 2015 AND THE SAME WAS PROCESSED AND AN INTIMATION DATED 30 JULY, 2015 WAS ISSUED BY THE AO U/S 200 A OF THE ACT . THUS, BOTH THE FILING OF THE RETURN OF INCOME BY THE ASSESSEE AND PROCESSING THE REOF HAS HAPPENED MUCH AFTER 1.6.2015 I.E, THE DATE OF ASSUM PTION OF JURISDICTION BY THE AO U/S 200A(1)(C) TO LEVY FEES UNDER SECTION 234E OF THE ACT. EVEN THOUGH THE QUARTERLY RETURN PERTA INS TO QUARTER ENDED 31.3.2015, THE FACT REMAINS THAT THERE IS A C ONTINUING DEFAULT EVEN AFTER 1.6.2015 AND THE RETURN WAS ACTUALLY FIL ED ON 22.07.2015. THE SAID PROVISIONS CANNOT BE READ TO SAY THAT WHER E AN ASSESSEE FILE HIS 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 WI LL SUFFER THE LEVY OF FEES, HOWEVER, AN ASSESSEE WHO HAS DELAYED THE FILI NG 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 CONT INUOUS DEFAULT ITA NO. 764/JP/2017 SHRI UTTAM CHAND GANGWAL, AJMER VS. ACIT, GHAZIABAD ON HIS PART EVEN AFTER 1.6.2015. IN OUR V IEW, THE AO HAS ACQUIRED THE JURISDICTION TO LEVY THE FEES AS ON 1. 06.2015 AND THEREFORE, ANY RETURN FILED AND PROCESSED AFTER 1.6 .2015 WILL FALL KRISHI UPAJ MANDI SAMITI 7 WITHIN HIS JURISDICTION WHERE ON OCCURRENCE 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 BE ANY LEVY OF FEES AS THE ASSUMPTION OF JURISD ICTION TO LEVY SUCH FEES HAVE BEEN HELD BY THE COURTS TO BE PROSPECTIVE IN NATURE. HOWEVER, WHERE THE DELAY CONTINUES BEYOND 1.06.2015 , THE AO IS WELL WITHIN HIS JURISDICTION TO LEVY FEES UNDER SECTION 234E FOR THE PERIOD STARTING 1.06.2015 TO THE DATE OF ACTUAL FIL ING OF THE TDS RETURN. IN LIGHT OF THE SAME, IN THE INSTANT CASE, THE LEVY OF FEES UNDER SECTION 234E IS UPHELD FOR THE PERIOD 1.06.2015 TO THE DATE OF ACTUAL FILING OF THE 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. 15. FROM PERUSAL OF THE ABOVE DECISION WE FIND THAT THE ISSUE BEFORE US IS SIMILAR TO THE ISSUE ADJUDICATED BY THE COORDINATE BENCH AND WE ACCORDINGLY HOLD THAT THE L D. CIT(A) HAS RIGHTLY CONFIRMED THE LEVY OF FEE U/S 23 4E OF THE ACT BY THE CPC,HOWEVER WE DIRECT THE REVENUE AUTHOR ITIES TO MAKE NECESSARY VERIFICATION IN EACH OF THE CASE SO AS TO LOOK INTO THE FACT THAT IN CASE IF ANY FEE U/S 234E IS LEVIED FOR THE DELAY IN FILING RETURN FOR THE PERIOD BEFOR E 01.06.2015, THE SAME IS DIRECTED TO BE DELETED AND THE REMAINING FEE LEVIED FOR THE DEFAULT COMMITTED FROM 01.06.2015 ONWARDS NEEDS TO BE CONFIRMED. KRISHI UPAJ MANDI SAMITI 8 7. ON PERUSAL OF THE FACTS OF THE INSTANT CASE AND IN LIGHT OF THE ABOVE FINDING OF THIS TRIBUNAL IN THE CASE OF M/S EXECUTIVE ENGINEERS & OTHERS, ITANO.457 TO 459/IND/2019 , & OTHERS, WE ARE OF THE VIEW THAT THE FEE LEVIED U/S 234E OF THE ACT FOR DELAY IN FILING RETURN UP TO 01.06.2015 DESERVES TO BE DELETED AND THE REMAINING FEE U/S 234E SHOULD BE CONFIRMED. WE ACCORDINGLY OR DER SO AND PARTLY ALLOW THE ASSESSEES APPEAL. 8. IN RESULT, APPEAL FILED BY THE ASSESSEE IN ITANO .08/IND/2018 IS PARTLY ALLOWED. ORDER PRONOUNCED AS PER RULE 34 OF I.T.A.T. RULES 1 963 ON . 05.10.2021. SD/- (CHANDRA MOHAN GARG) SD/- (MANISH BORAD) J UDICIAL MEMBER A CCOUNTANT MEMBER INDORE; DATED : 05/10/2021 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE