Namo Tractors Private Ltd., Sangli V. Deputy Commissioner of Income-tax,

ITA 915/PUN/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8632 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-08-2019
• Assessment Year: misc
• Appeal Filed On: 13-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N ASHOK BABU
• Keywords: Charitable institution; TDS
• Section: 234E; 200A; 246A; 246; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.915/PUN/2017 / ASSESSMENT YEAR : 2013-14 NAMO TRACTORS PVT. LTD., SURAJ BUNGLOW, NEAR KRISHNA HALL, VISHRAMBAG, SANGLI-416416. PAN : AADCN6584G ....... / APPELLANT / V/S. DCIT, CPC-TDS, GHAZIABAD. / RESPONDENT ASSESSEE BY : WRITTEN SUBMISSION REVENUE BY : SHRI N. ASHOK BABU / DATE OF HEARING : 06.08.2019 / DATE OF PRONOUNCEMENT : 04.09.2019 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-1, KOLHAPUR DATED 07.06.2016 FOR THE ASSESSMENT YEAR 2012-13. APPEAL RELATES TO THE PROVISIONS OF SECTION 234E OF THE ACT RELATING TO FEE FOR DEFAULT IN FURNISHING STATEMENTS. 2. DESPITE SERVICE OF NOTICE OF HEARING BY THE ITAT, THERE WAS NONE TO REPRESENT THE ASSESSEE ON THE DATE OF HEARING. HOWEVER, THE ASSESSEE FILED WRITTEN SUBMISSION IN SUPPORT OF HIS CASE AND THE SAME IS PLACED ON RECORD. THEREFORE, THIS APPEAL IS BEING DECIDED ON THE BASIS OF MATERIAL 2 ITA NO.915/PUN/2017 AVAILABLE ON RECORD, WRITTEN SUBMISSION OF THE ASSESSEE AND AFTER HEARING THE LD. DR FOR THE REVENUE. 3. IT IS A CASE WHERE THE ASSESSEE FILED THE STATEMENT LATE AND THE LATE FEE WAS LEVIED U/S 234E OF THE ACT FOR THE ASSESSMENT YEAR 2013-14 UNDER CONSIDERATION. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) ASKING FOR DELETION OF THE SAID LATE FEE. HOWEVER, THE CIT(A) HELD THAT THE APPEAL IS NOT ONLY MAINTAINABLE IN VIEW OF THE JURISDICTIONAL HIGH COURTS JUDGEMENT IN THE CASE OF RASHMIKANT KUNDALIA VS. UOI, 54 TAXMANN.COM 200 BUT ALSO CONFIRMED THE SAID LATE FEE ON MERITS. HOWEVER, THERE IS NO DISCUSSION ABOUT THE APPLICATION OF THE DECISION OF THE TRIBUNAL IN THE CASE OF GAJANAN CONSTRUCTIONS VS. DCIT, 73 TAXMANN.COM 380 (PUNE-TRIB.) WHICH REFERS TO THE AMENDMENT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. 4. AGGRIEVED WITH THE SAID ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AS STATED EARLIER, THERE WAS NONE TO REPRESENT THE ASSESSEE. HOWEVER, THE WRITTEN SUBMISSIONS ARE FILED ON 29.07.2019 ARGUING FOR DELETION OF PENALTY RELYING ON VARIOUS DECISIONS ON THE SAID ISSUE. THE SAID WRITTEN SUBMISSIONS ARE EXTRACTED HEREUNDER :- 1.1 THE LATE FILING FEES U/S.234E IS LEVIED / CHARGED AS PER INTIMATION U/S. 200 A. AS PER PROVISIONS OF SECTION 234 E SUB SECTION 3 IT IS REQUIRED THAT THE FEES SHALL BE PAID BEFORE DELIVERY OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SUB SECTION 3 OF SECTION 200 (TDS RETURN). THERE IS NO PROVISION IN THE SECTION 234 E TO PAY SUCH FEES AFTER FILING OF THE RETURN. 3 ITA NO.915/PUN/2017 1.2 THE PROVISIONS OF SECTION 200 (A) EMPOWER ONLY PROCESSING OF THE TDS STATEMENT / RETURN AFTER MAKING ADJUSTMENT ON ACCOUNT OF ANY ARITHMETICAL ERRORS OR ON INCORRECT CLAIM, COMPUTATION OF INTEREST OR DETERMINATION OF REFUND ONLY. THUS THERE IS NO ENABLING PROVISION IN THE SECTION 200 (A) FOR RAISING A DEMAND FOR RECOVERY OF FEES U/S.234 E, AND HENCE ADJUSTMENT IN RESPECT OF LEVY OF FEES U/S. 234 E IS TOTALLY BEYOND THE SCOPE OF ADJUSTMENTS CONTEMPLATED U/S.200 (A). SIMILARLY THERE IS NO OTHER PROVISION IN THE INCOME TAX ACT ENABLING ANY SECTION FOR LEVY OR RECOVERY FOR SUCH FEES PRIOR TO 01/06/2015. IN VIEW OF THIS IT IS SUBMITTED THAT IMPUGNED LEVY OF FEES OF SECTION 234 E, IS UNJUSTIFIED & BAD IN LAW & DESERVES TO BE DELETED. 1.3 APPELLANT RELY ON FOLLOWING DECISION IN THIS REGARD. (I) SMT. G. INDHIRANI VS. DCIT, 60 TAXMANN.COM 312. (II) SIBIA HEALTHCARE (P) LTD. VS. DCIT, 61 TAXMANN.COM 70. (III) INDIAN OVERSEAS BANK VS. DCIT, ITA NO.3271/AHD/2014 DT. 03.09.2015. (IV) KANAK CASTOR PRODUCTS P. LTD., ITA NO.2726/AHD/2015 DT. 18.01.2016. (V) GLOBLE ECOLAGISTIC LTD., ITA NO.2689/AHD/2015, DT. 23.11.2015. (VI) ROOTS DESIGN INDIA, ITA NO.709/DEL/2015 DT. 08.10.2015. (VII) SHREE HARSIDH SEVA SAMITI TRUST VS. DCIT, ITA NO.54/AHD/2015. (VIII) LIONS CLUB OF NORTH SURAT CHARITABLE TRUST VS. ITO, ITA NOS.3274, 3275 & 3276/AHD/2014. THUS FOLLOWING THE DECISIONS OF AMRUTSAR AND CHENNAI ITAT, SIMILAR DECISIONS ARE TAKEN BY DELHI ITAT AND AHMEDABAD ITAT ALSO. ALL THE ABOVE CASES ARE THAT OF PRIOR TO 01/06/2015, THERE WAS NO ENABLING PROVISION IN SECTION 200A FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEES UNDER SECTION 234 E AND PRIOR TO 01/06/2015 FEES LEVIED BY ASSESSING OFFICER UNDER SECTION 234 E WHILE PROCESSING STATEMENT OF TAX DEDUCTED AT SOURCE WAS BEYOND SCOPE OF ADJUSTMENT PROVIDED UNDER SECTION 200 A. 2. FURTHER IT IS ALSO IMPORTANT TO NOTE THAT THIS INTIMATION IS AN APPEALABLE ORDER U/S 246 (A)(A). ATTENTION IS DRAWN TO THE AMENDMENT IN SECTION 246A (A) ACCORDING TO WHICH INTIMATIONS U/S 200A ARE APPEALABLE. THIS VIEW IS ALSO SUPPORTED AND ENDORSED BY THE DECISION OF AMRITSAR BENCH IN THE ABOVE REFERRED CASE OF SIBIA HEALTHCARE (P) LTD AND ALSO BY DELHI ITAT AND ALSO BY AHMADABAD ITAT. THUS THE ISSUE IS VERY MUCH SETTLED IN FAVOUR OF THE APPELLANT. 3. HON KARNATAKA HIGH COURT IN WRIT APPEAL NO.2663-2674 OF 2015, IN THE CASE OF SRI FATHERAJ SINGHVI & OTHERS HAVE HELD THAT APPEALS AGAINST ORDER PASSED LEVYING FEES U/S 234 E ARE APPEALABLE AND IT IS ALSO HELD THAT, DEMAND NOTICE U/S. 200A IN RESPECT OF PAYMENT OF FEES U/S. 234 E PRIOR TO THE DATE 01/06/2015 ARE WITHOUT ANY AUTHORITY LAW. APPELLANT WISH TO RELY ON THIS DECISION. FURTHER HON PUNE ITAT HAVE ALSO FOLLOWED THE DECISION OF HON KARNATAKA HIGH COURT AND HAVE HELD IN THE CASE OF GAJANAN CONSTRUCTIONS & OTHERS ITA NO.1292 & 1293/PN/2015 THAT THE ASSESSING OFFICER WHILE PROCESSING 4 ITA NO.915/PUN/2017 THE TDS STATEMENT / RETURNS IN THE PRESENT SET OF APPEAL FOR THE PERIOD PRIOR 01/06/2015 WAS NOT EMPOWERED TO CHARGE FEES U/S.234 E. HENCE THE INTIMATION ISSUED BY THE A.O. UNDER SEC 200 A DOES NOT STAND AND THE DEMAND RAISED BY WAY OF CHARGING THE FEES U/S.234 E IS NOT VALID & SAME IS DELETED. APPELLANT ALSO WISH TO RELY ON THIS DECISION OF HON PUNE ITAT. 4. IN THE PRESENT CASE, TDS RETURNS 24Q AND 26Q OF 4 TH QUARTER OF F.Y. 2012-13 IS FILED ON 11.10.2013 AND 15.10.2013. TDS STATEMENT IS ACCEPTED BY THE NSDL (APPROVED) WITHOUT PAYMENT OF LATE FEES. APPELLANT DID RECEIVE INTIMATION U/S. 200A RAISING DEMAND FOR LATE FEES U/S. 234E DT. 20/01/2014. FACTS OF THE PRESENT CASE OF THE APPELLANT ARE SAME AS THOSE WERE IN THE CASE OF GAJANAN CONSTRUCTION & OTHER ITA NO.1292/1293/PN/2015 & THE CASE OF THE APPELLANT IS COVERED BY ABOVE DECISION. HENCE IT IS REQUESTED TO ALLOW THE APPEAL BEING DEMAND RAISED PRIOR TO 01/06/2015 & OBLIGE. 6. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). 7. WE HEARD BOTH THE SIDES ON THIS LEGAL ISSUE OF THE APPLICABILITY OF THE SAID DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF GAJANAN CONSTRUCTIONS (SUPRA) AND FIND THAT THE IF THE SAID DECISION IS APPLIED, THE ASSESSEE IS ENTITLED TO GET THE RELIEF. WE FIND THAT THE YEAR UNDER CONSIDERATION PERTAINS TO THE ASSESSMENT YEAR 2013-14 AND IT RELATES TO THE QUARTERS OF THE RELEVANT FINANCIAL YEAR AND THE FINANCIAL YEAR/ASSESSMENT UNDER CONSIDERATION FALLS IN THE PERIOD PRIOR TO THE AMENDMENT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. FOR WANT OF ENABLING THE PROVISIONS OF SECTION 200A OF THE ACT, THE LATE FEE LEVIED U/S 234E OF THE ACT WAS DELETED IN THE SAID CASE. THE FACTS ARE IDENTICAL TO ONE OF THE PRESENT CASE, THEREFORE, WE FIND RELEVANT TO EXTRACT THE CONCLUSION OF THE SAID ORDER OF THE TRIBUNAL (SUPRA) AND THE SAME IS READ AS UNDER :- 5 ITA NO.915/PUN/2017 IT : POWER TO CHARGE/COLLECT FEES UNDER SECTION 234E WAS VESTED WITH REVENUE ONLY ON SUBSTITUTION OF CLAUSE (C) TO SECTION 200A VIDE FINANCE ACT, 2015 WITH EFFECT FROM 1-6-2015, HENCE PRIOR TO 1-6-2015 NO FEE COULD HAVE BEEN LEVIED UNDER SECTION 234E WHILE ISSUING INTIMATION UNDER SECTION 200A IT: AN APPEAL AGAINST INTIMATION ISSUED UNDER SECTION 200A AND/OR ORDER PASSED UNDER SECTION 154 READ WITH SECTION 200A BY ASSESSING OFFICER IN CHARGING FEES UNDER SECTION 234E IS MAINTAINABLE 8. CONSIDERING THE ABOVE SETTLED LEGAL PROPOSITION ON THIS ISSUE, WE ARE OF THE OPINION THAT THE PROVISIONS OF SECTION 234E OF THE ACT AS AMENDED BY THE FINANCE ACT, 2015 DOES NOT APPLY TO THE PRESENT CASE PRIOR TO THE SAID AMENDMENT ON THIS ISSUE UNDER CONSIDERATION. ACCORDINGLY, THE RELEVANT GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 04 TH DAY OF SEPTEMBER, 2019. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 04 TH SEPTEMBER, 2019. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-1, KOLHAPUR. 4. THE CIT-1, KOLHAPUR. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.