Sh Sanjeev Kumar Goyal, Bathinda V. The Dy. Commissioner of Income-tax, Ghaziabad

ITA 88/ASR/2015

• Counselvise Citation: 8820914 RSA 2015
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 13-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARSEM LAL
• Assessee Lawyers: ASHWANI KALIA

Judgement Text

I.T.A. NO.88 & 89/ASR/2015 ASSESSMENT YEAR 2013-14 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR [CORAM:PRAMOD KUMAR AM AND A.D. JAIN JM] I.T.A. NO.88 AND 89/ASR/2015 ASSESSMENT YEAR: 2013-14 SANJEEV KUMAR GOYAL, ..APPELLANT 111, NORTH ESTATE, BARNALA ROAD, BATHINDA. [PAN:ABLPG 8345 A] VS. DY. COMMISSIONER OF INCOME-TAX (TDS), .RESPONDENT CENTRALIZED PROCESSING CELL, GHAZIABAD APPEARANCES BY: ASHWANI KALIA FOR THE APPELLANT TARSEM LAL FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JUNE 09, 2015 DATE OF PRONOUNCING THE ORDER : JUNE 09, 2015 O R D E R PER BENCH: 1. BY WAY OF THESE APPEALS, THE ASSESSEE HAS CALLED INTO QUESTION CORRECTNESS OF THE ORDERS DATED 13 TH OCTOBER 2014 PASSED BY THE LEARNED CIT(A) UPHOLDIN G LEVY OF FEES UNDER SECTION 234 E OF THE INCOME TAX ACT, 196 1, ON THE ASSESSEE AND BY WAY OF INTIMATIONS DATED 9 TH SEPTEMBER 2013 ISSUED UNDER SECTION 200A IN RESPEC T OF PROCESSING OF TDS STATEMENTS THE THIRD AND FOURTH Q UARTERS OF THE FINANCIAL YEAR 2012-13. 2. DURING THE COURSE OF HEARING, LEARNED REPRESENTA TIVES FAIRLY ACCEPT THAT THE ISSUE INVOLVED IN THESE APPEALS IS THE SAME AS WAS IN ITA NO. 90/ASR/2015 (A.Y. 2013-14) IN THE CASE OF SIBIA HEALTHCARE PRIVATE LI MITED, BATHINDA VS. DCIT (TDS), WHEREIN THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE VIDE ORDER OF THE EVEN DATE OBSERVING AS FOLLOWS : I.T.A. NO.88 & 89/ASR/2015 ASSESSMENT YEAR 2013-14 PAGE 2 OF 6 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. IN ADDITION TO HIS ARGUM ENT ON THE MERITS, LEARNED COUNSEL HAS ALSO INVITED OUR ATTENTION TO T HE REPORTS ABOUT THE DECISIONS OF VARIOUS HONBLE HIGH COURTS, INCLUDING HONBLE KERALA HIGH COURT, IN THE CASE OF NARATH MAPILA LP SCHOOL VS UNION OF INDIA [WP (C) 31498/2013(J)], HONBLE KARANATAKA HIGH COU RT IN THE CASE OF ADITHYA BIZOR P SOLUTIONS VS UNION OF INDIA [WP NO. 6918- 6938/2014(T-IT), HONBLE RAJASTHAN HIGH COURT IN TH E CASE OF OM PRAKASH DHOOT VS UNION OF INDIA [WP NO. 1981 OF 201 4] AND OF HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS UNION OF INDIA [WP NO. 771 OF 2014], GRANTING STAY ON THE DEMANDS RAISED IN RESPECT OF FEES UNDER SECTION 234E. THE F ULL TEXT OF THESE DECISIONS WERE NOT PRODUCED BEFORE US. HOWEVER, AS ADMITTEDLY THERE ARE NO ORDERS FROM THE HONBLE COURTS ABOVE RETRAIN ING US FROM OUR ADJUDICATION ON MERITS IN RESPECT OF THE ISSUES IN THIS APPEAL, AND AS, IN OUR HUMBLE UNDERSTANDING, THIS APPEAL REQUIRES ADJU DICATION ON A VERY SHORT LEGAL ISSUE, WITHIN A NARROW COMPASS OF MATER IAL FACTS, WE ARE PROCEEDING TO DISPOSE OF THIS APPEAL ON MERITS. 5. WE MAY PRODUCE, FOR READY REFERENCE, SECTION 234 E OF THE ACT, WHICH WAS INSERTED BY THE FINANCE ACT 2012 AND WAS BROUGHT INTO EFFECT FROM 1 ST JULY 2012. THIS STATUTORY PROVISION IS AS FOLLOWS: 234E. FEE FOR DEFAULTS IN FURNISHING STATEMENTS (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEME NT WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB- SECTION (3) OF SECTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVERY DAY DURING WH ICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CASE MAY BE. (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STAT EMENT IN ACCORDANCE WITH SUB-SECTION (3) OF SECTION 200 OR T HE PROVISO TO SUB-SECTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR TH E PROVISO TO SUB- SECTION (3) OF SECTION 206C WHICH IS TO BE DELIVERE D OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURCE OR TAX COLL ECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER THE 1ST DAY OF JULY , 2012 I.T.A. NO.88 & 89/ASR/2015 ASSESSMENT YEAR 2013-14 PAGE 3 OF 6 6. WE MAY ALSO REPRODUCE THE SECTION 200A WHICH WAS INSERTED BY THE FINANCE ACT 2009 WITH EFFECT FROM 1 ST APRIL 2010. THIS STATUTORY PROVISION, AS IT STOOD AT THE RELEVANT POINT OF TIM E, WAS AS FOLLOWS: 200A: PROCESSING OF STATEMENTS OF TAX DEDUCTED AT S OURCE (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE, O R A CORRECTION STATEMENT, HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLO WING MANNER, NAMELY: (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMAT ION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AM OUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID U NDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OT HERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR: PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FI NANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION : FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMEN T' SHALL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE STATEMENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOUR CE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF TH IS ACT; I.T.A. NO.88 & 89/ASR/2015 ASSESSMENT YEAR 2013-14 PAGE 4 OF 6 (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB- SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRA LISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB-SECTION . 7. BY WAY OF FINANCE ACT 2015, AND WITH EFFECT FROM 1 ST JUNE 2015, THERE IS AN AMENDMENT IN SECTION 200A AND THIS AMEN DMENT, AS STATED IN THE FINANCE ACT 2015, IS AS FOLLOWS: IN SECTION 200A OF THE INCOME-TAX ACT, IN SUB-SECTI ON (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WITH EFFECT FROM THE 1ST DAY OF JUNE, 2015, NAMELY: (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDAN CE 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 TH E AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST AN Y AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 23 4E AND ANY AMOUNT PAID OTHERWISE BY WAY 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 PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR. 8. IN EFFECT THUS, POST 1 ST JUNE 2015, IN THE COURSE OF PROCESSING OF A TDS STATEMENT AND ISSUANCE OF INTIMATION UNDER SE CTION 200A IN RESPECT THEREOF, AN ADJUSTMENT COULD ALSO BE MADE I N RESPECT OF THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH T HE PROVISIONS OF SECTION 234E . THERE IS NO DISPUTE THAT WHAT IS IMPUGNED IN APP EAL BEFORE US IS THE INTIMATION UNDER SECTION 200A OF T HE ACT, AS STATED IN SO MANY WORDS IN THE IMPUGNED INTIMATION ITSELF, AN D, AS THE LAW STOOD, PRIOR TO 1 ST JUNE 2015, THERE WAS NO ENABLING PROVISION THEREIN FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEES UNDER S ECTION 234E. WHILE EXAMINING THE CORRECTNESS OF THE INTIMATION UNDER S ECTION 200A, WE HAVE TO BE GUIDED BY THE LIMITED MANDATE OF SECTION 200A, WHICH, AT THE RELEVANT POINT OF TIME, PERMITTED COMPUTATION O F AMOUNT RECOVERABLE FROM, OR PAYABLE TO, THE TAX DEDUCTOR A FTER MAKING THE FOLLOWING ADJUSTMENTS: (A). AFTER MAKING ADJUSTMENT ON ACCOUNT OF ARITHME TICAL ERRORS AND INCORRECT CLAIMS APPARENT FROM ANY INFORMATION IN HE STATEMENT I.T.A. NO.88 & 89/ASR/2015 ASSESSMENT YEAR 2013-14 PAGE 5 OF 6 - SECTION 200A(1)(A) (B). AFTER MAKING ADJUSTMENT FOR INTEREST, IF ANY , COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STATEME NT. - SECTION 200A(1)(B) 9. NO OTHER ADJUSTMENTS IN THE AMOUNT REFUNDABLE TO , OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBL E IN ACCORDANCE WITH THE LAW AS IT EXISTED AT THAT POINT OF TIME. 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSID ERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMP LATED UNDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDE R UNDER SECTION 246A(A), AND, THEREFORE, THE CIT(A) OUGHT TO HAVE E XAMINED LEGALITY OF THE ADJUSTMENT MADE UNDER THIS INTIMATION IN THE LI GHT OF THE SCOPE OF THE SECTION 200A. LEARNED CIT(A) HAS NOT DONE SO. H E HAS JUSTIFIED THE LEVY OF FEES ON THE BASIS OF THE PROVISIONS OF SECT ION 234E. THAT IS NOT THE ISSUE HERE. THE ISSUE IS WHETHER SUCH A LEVY CO ULD BE EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A. THE AN SWER IS CLEARLY IN NEGATIVE. NO OTHER PROVISION ENABLING A DEMAND IN R ESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN ADMITT ED POSITION THAT IN THE ABSENCE OF THE ENABLING PROVISION UNDER SECTION 200 A, NO SUCH LEVY COULD BE EFFECTED. AS INTIMATION UNDER SECTION 200A , RAISING A DEMAND OR DIRECTING A REFUND TO THE TAX DEDUCTOR, CAN ONLY BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR WITHIN WHIC H THE RELATED TDS STATEMENT IS FILED, AND AS THE RELATED TDS STATEMEN T WAS FILED ON 19 TH FEBRUARY 2014, SUCH A LEVY COULD ONLY HAVE BEEN MAD E AT BEST WITHIN 31 ST MARCH 2015. THAT TIME HAS ALREADY ELAPSED AND THE DEFECT IS THUS NOT CURABLE EVEN AT THIS STAGE. IN VIEW OF THESE DI SCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234 E IS UNSUSTAINABLE IN LAW. WE, THEREFOR E, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED L EVY OF FEE UNDER SECTION 234E OF THE ACT. THE ASSESSEE GETS THE RELI EF ACCORDINGLY. 3. WE DO NOT SEE ANY REASON TO TAKE ANY VIEW OTHER THAN THAT ALREADY ADOPTED IN THE ABOVE CASE. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND REVERSE THE ORDERS OF THE LEARNED CIT(A). THE ASSESSEE GETS THE RELIEF ACCORDINGLY. 4. IN THE RESULT, THE APPEALS ARE ALLOWED. PRONOUNC ED IN THE OPEN COURT ON 9 TH DAY OF JUNE, 2015. SD/- SD/- A D JAIN PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 9 TH DAY OF JUNE 2015 I.T.A. NO.88 & 89/ASR/2015 ASSESSMENT YEAR 2013-14 PAGE 6 OF 6 *AKS/- COPIES TO: (1) THE APPELLANT (2) THE RESPONDE NT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR