SGBL Automobiles (P) Ltd., Cuttack V. ACIT (CPC-TDS), Cuttack

ITA 88/CTK/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1366 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 14-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause; Revised return; TDS
• Section: 234E; 201; 192; 194J

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M.GARG , JM & SHRI L.P. SAHU, AM . / ITA NO. 88 /CTK/20 20 (THROUGH : VIRTUAL HEARING ) ( / A SSESSMENT Y EAR : 20 17 - 18 ) SGBL AUTOMOBILES PVT LTD., SAI ENCLAVE, SATI CHO W RA CHOWK, CUTTACK VS. ITO, TDS, CUTTACK PAN NO. : AAQCS 5278 P ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI MOHIT SHETH, AR /REVENUE BY : SH RI SUBHENDU DATTA, DR / DATE OF HEARING : 10 /1 2 /2020 / DATE OF PRONOUNCEMENT : 14 / 1 2 /2020 / O R D E R PER L.P.SAHU , AM : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 14.10.2019 , PASSED BY THE CIT(A), CUTTACK FOR THE ASSESSMENT YEAR 201 7 - 18 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 01. THAT THE LD. CIT APPEAL IS ERRED IN LAW BY CONFIRMING THE LEVY OF CPC - TDS U/S 234E WITHOUT APPRECIATING THE GROUNDS OF THE APPELLANT AND WITHOUT CONS IDERING THE TECHNICAL ASPECTS FOR MODIFICATION OF 26Q TO 24Q IN THE SYSTEM. HENCE THE LEVY U/S 234E NEEDS TO BE DELETED IN FULL. 02. THE LD. CIT - A HAS ERRED IN LAW BY CONFIRMING THE LEVY OF CPT TCD WITHOUT CONSIDERING THE 234E (2) WHERE THERE WAS NO ABS OLUTELY OUTSTANDING FOR DEPOSIT OF ITA NO. 88 /CTK/20 20 2 TDS AMOUNT WHILE MAKING THE MODIFICATION FROM 26Q TO 24Q. HENCE, THE LEVY IS AGAINST NATURAL JUSTICE WHICH NEEDS TO BE DELETED IN FULL. 03. THE LD. CIT - A IS ERRED IN LAW AS MUCH AS IN FACT THAT CPC SYSTEM ITSELF IS IN SUCH A WAY THAT THERE IS NO PROVISION OF MAKING THE CORRECTION IN FORM 26Q BUT THE APPELLANT HAS ONLY OPTION TO FILE THE RETURN ITSELF I.E. 24Q TO RECTIFY THE CLERICAL MISTAKE FROM 194J TO 192 WITHOUT AFFECTING ANY AMOUNT. HENCE THE LEVY IS AGAINST THE NAT URAL JUSTICE AND NOT SUSTAINABLE IN THE EYE OF LAW WHICH NEEDS TO BE DELETED IN FULL. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED THE QUARTERLY E - TDS RETURNS BEYOND THE DUE DATE FOR WHICH LATE FILING FEES U/S.234E OF THE ACT FOR QUARTER Q4 (24Q) OF ASSESSMENT YEAR 2017 - 18 WAS LEVIED BY THE ITO, TDS. ON APPEAL, THE LD CIT (A) CONFIRMED THE ACTION OF THE ITO (TDS). 4. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE FILED THE RETURN FOR THE 4 TH QUARTER FOR ASSESSMENT YEA R 2017 - 18 ON 31.5.2017 AND WHILE FILING THE TDS RETURN, AMOUNT OF RS.90,000/ - WAS MISSED OUT AND, THEREAFTER, REVISED RETURN WAS FILED ON 18.11.2017 SPECIFYING THE AMOUNT OF TDS OF RS.90,000/ - U./S. 194J OF THE ACT. HOWEVER, ON VERIFICATION OF REVISED RET URN, THE ASSESSEE FOUND THAT THERE IS MISTAKE IN THE REVISED RETURN AND RECTIFIED THE SAME BY DEDUCTING THE AMOUNT OF RS.90,000/ - U/S.194J FROM FORM 26Q AND FILED THE RETURN ON THE SAME QUARTER UNDER FORM 24Q (SALARY RETURN) SPECIFYING THE SALARY OF RS.90, 000/ - AND TDS THEREON U/S.192 OF THE ACT. HE SUBMITTED THAT THERE IS NO CHANGE IN THIS AMOUNT OF CREDIT AND TDS AMOUNT.. HE SUBMITTED THAT AS THERE IS NO PROVISION IN FORM 26Q CORRECTION, FORM 24Q WAS FILED BY THE ASSESSEE WITH CHANGE OF SECTION ITA NO. 88 /CTK/20 20 3 ONLY I.E . FROM 194J TO 192. HE SUBMITTED THAT THIS IS A PROCEDURAL MISTAKE AND SINCE SAME HAS BEEN RECTIFIED. SINCE BY CORRECTING THE MISTAKE, THE DELAY HAS BEEN OCCURRED, THE LEVY OF PENALTY U/S.234E BE DELETED. 5. ON THE OTHER HAND, THE LD DR HAS SUBMITTED T HAT THE LEVY OF LATE FEE U/S 234E OF THE ACT IS MANDATORY AND CONSEQUENTIAL IN NATURE AND THEREFORE, THE REASONABLE CAUSE FOR DEFAULT OF NOT SUBMITTING THE TDS STATEMENTS CANNOT BE CONSIDERED A GROUND FOR DELETION OF SUCH LEVY. HE FURTHER CONTENDED THAT TH IS IS NOT A PENALTY LEVIED UNDER CHAPTER - XXI OF THE ACT WHICH CAN BE DELETED IF THE ASSESSEE EXPLAINED A REASONABLE AND BONAFIDE CAUSE. THUS, A LEVY OF LATE FEE FOR DEFAULT IN FURNISHING THE STATEMENTS IS REQUIRED U/S 200(3) AS WELL AS SECTION 206C(3) OF T HE ACT. THEREFORE, THE A.O. IS HAVING NO DISCRETION TO LEVY OR NOT TO LEVY THE PENALTY BUT IT IS MANDATORY ONCE THERE IS A DEFAULT IN FURNISHING THE TDS STATEMENTS ON THE PART OF THE ASSESSEE . 6. AFTER HEARING THE RIVAL SUBMISSIONS, WE FIND THAT A S PER SEC TION 234E, WHERE A PERSON FAILS TO FILE THE TDS/TCS RETURN ON OR BEFORE THE DUE DATE PRESCRIBED IN THIS REGARD, THEN HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF RS. 200 FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. THE AMOUNT OF LATE FEES SHALL NOT EXCEED THE AMOUNT OF TDS . IN THE PRESENT CASE, THE ASSESSEE HAS PAID THE AMOUNT OF TDS BUT INADVERTENTLY, THE AMOUNT WAS SHOWN IN FORM 26Q INSTEAD OF FORM ITA NO. 88 /CTK/20 20 4 24Q. HOWEVER, LATER ON THE SAME WAS RECTIFIED BY THE ASSESSEE AND THERE IS NO CHANGE IN THE TDS AMOUNT. SECTION 234E SPECIFY FEE FOR DEFAULT IN FURNISHING STATEMENT BUT IN THE PRESENT CASE, THERE IS NO DEFAULT IN FURNISHING STATEMENT. THIS IS A PROCEDURAL MISTAKE AND THERE IS NO LOSS OF REVENUE TO THE GOVT. EXCHEQUER. IN VIEW OF ABOVE, WE CONDONE THE LEVY OF FEES U/S.234E OF THE ACT AND ALLOW THE APPEAL OF THE ASSESSEE. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 / 12 / 20 20 . SD/ - (C.M.GARG ) JUDICIAL MEMBER SD/ - (L.P.SAHU ) ACCOUNTANT MEMBER CUTTACK ; DATED 14 / 12 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , /ITAT, CUTTACK 1. / THE APPELLANT - SGBL AUTOMOBILES PVT LTD., SAI ENCLAVE, SATI CHOWRA CHOWK, CUTTACK 2. / THE RESPONDENT - ITO TDS, CUTTACK 3. ( ) / THE CIT(A), CUTTACK 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//