Aster Queens, Salem V. DCIT, Ghaziabad

ITA 966/CHNY/2015

• Counselvise Citation: 96621714 RSA 2015
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 12-10-2015
• Assessment Year: misc
• Appeal Filed On: 29-04-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . ! '# , $ %& BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ./ ITA NO. 966/MDS/2015 / ASSESSMENT YEAR : 2013-14 ASTER QUEENS, NO.48-L, FIRST FLOOR, RVP COMPLEX, MOHANUR ROAD, NAMAKKAL 637 001. PAN AAUFA0799G APPELLANT) V. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRALIZED PROCESSING CELL- TDS, VAISHALI, GHAZIABAD. RESPONDENT) / APPELLANT BY : SHRI T. VASUDEVAN, ADVOCATE FOR SHRI T.S.LAKSHMIVENKATRAMAN / RESPONDENT BY : SHRI A.V.SREEKANTH, JCIT ! / DATE OF HEARING : 12.10.2015 '# ! / DATE OF PRONOUNCEMENT: 16.10.2015 ' / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) DATED 27 .2.2015. - - ITA 966/1 5 2 2. THE ONLY GROUND IN THIS APPEAL IS WITH REGARD TO LEVY OF LATE FILING FEE U/S.234E OF THE I.T.ACT, 1961, WHIL E PROCESSING THE STATEMENT FURNISHED BY THE ASSESSEE U/S.200A. 3. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE OP INION THAT SIMILAR ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN TH E CASE OF SMT. G. INDHIRANI AND OTHERS IN ITA NO.1019 TO 1021/MDS/ 2015. THE TRIBUNAL VIDE ITS ORDER DATED 10.7.2015, DECIDED TH E ISSUE IN FAVOUR OF THE ASSESSEE BY OBSERVING AS FOLLOWS: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. SECTION 200A OF THE ACT PROVIDES FOR PROCESSING OF THE STATEMENT OF TAX DEDUCTED AT SOURCE BY MAKING ADJUSTMENT AS PROVIDED IN THAT SECTION. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE PROVISIONS OF SECTION 200A OF THE ACT:- 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOU RCE OR A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM(HEREAFTER REFERRED TO IN THIS SEC TION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL B E PROCESSED IN THE FOLLOWING 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 INFORMATION IN THE STATEMENT ; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT ; - - ITA 966/1 5 3 (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTME NT OF AMOUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OTHERWISE 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 PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C) ; AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHA LL 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 T HE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION FOR THE PURPOSES OF THIS SUB-SECTION, AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN TH E STATEMENT SHALL MEAN A CLAIM, ON THE BASIS OF AN E NTRY, 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 THIS ACT; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALISED 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. THE ASSESSING OFFICER CANNOT MAKE ANY ADJUSTMENT OTHER THAN THE ONE PRESCRIBED ABOVE IN SECTION 200A OF THE ACT. BY FINANCE ACT, 2015, WITH EFFECT FROM 01.06.2015, THE PARLIAMENT AMENDED SECTION 200A BY SUBSTITUTING SUB-SECTION (1) OF CLAUSES (C) TO (E). FOR THE PURPOSE OF CONVENIENCE, - - ITA 966/1 5 4 WE ARE REPRODUCING THE AMENDMENT MADE IN SECTION 200A BY THE FINANCE ACT, 2015 AS UNDER:- 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 1 ST 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) AGA INST ANY AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY O F 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 PA YABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUS E (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRAN TED TO THE DEDUCTOR. THEREFORE, IT IS OBVIOUS THAT PRIOR TO 01.06.2015, THERE WAS NO ENABLING PROVISION IN SECTION 200A OF THE AC T FOR MAKING ADJUSTMENT IN RESPECT OF THE STATEMENT FILED BY THE ASSESSEE WITH REGARD TO TAX DEDUCTED A T SOURCE BY LEVYING FEE UNDER SECTION 234E OF THE ACT . THE PARLIAMENT FOR THE FIRST TIME ENABLED THE ASSESSING OFFICER TO MAKE ADJUSTMENT BY LEVYING FEE UNDER SECTION 234E OF THE ACT WITH EFFECT FROM 01.06.2015. THEREFORE, AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE ASSESSEES, WHILE PROCESSING STATEMENT UNDER SECTION 200A OF THE ACT, THE ASSESSING OFFICER CANNOT MAKE ANY ADJUSTMENT BY LEVYING FEE UNDER SECTION 234E PRIOR TO 01.06.2015. IN THE CASE BEFORE US, THE ASSESSING OFFICER LEVIED FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE UNDER - - ITA 966/1 5 5 SECTION 200A OF THE ACT. THEREFORE, THIS TRIBUNAL I S OF THE CONSIDERED OPINION THAT THE FEE LEVIED BY THE ASSESSING OFFICER UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE IS BEYOND THE SCOPE OF ADJUSTMENT PROVIDED UNDER SECTION 200A OF THE ACT. THEREFORE, SUCH ADJUSTMENT CANNOT STAND IN THE EYE OF LAW. 8. THE NEXT CONTENTION OF THE ASSESSEE IS THAT SECT ION 234E OF THE ACT SAYS THAT THE ASSESSEE SHALL BE LIABLE TO PAY BY WAY OF FEE, THEREFORE, THE ASSESS EE HAS TO VOLUNTARILY PAY THE FEE AND THE ASSESSING OFFICER HAS NO AUTHORITY TO LEVY FEE. THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE IS VERY ATTRACTIVE AND FANCIFUL. HOWEVER, WE DO NOT FIND ANY SUBSTANCE IN THAT ARGUMENT. WHEN SECTION 234E CLEARLY SAYS THAT THE ASSESSEE IS LIABLE TO PAY FEE FOR THE DELA Y IN DELIVERY OF THE STATEMENT WITH REGARD TO TAX DEDUCT ED AT SOURCE, THE ASSESSEE SHALL PAY THE FEE AS PROVID ED UNDER SECTION 234E(1) OF THE ACT BEFORE DELIVERY OF THE STATEMENT UNDER SECTION 200(3) OF THE ACT. IF T HE ASSESSEE FAILS TO PAY THE FEE FOR THE PERIODS OF DE LAY, THEN THE ASSESSING AUTHORITY HAS ALL THE POWERS TO LEVY FEE WHILE PROCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT BY MAKING ADJUSTMENT AFTER 01.06.2015. HOWEVER, PRIOR TO 01.06.2015, THE ASSESSING OFFICER HAD EVERY AUTHORITY TO PASS AN ORDER SEPARATELY LEVYING FEE UNDER SECTION 234E OF THE ACT. WHAT IS NOT PERMISSIBLE IS THAT LEVY OF FE E UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE AND MAKING ADJUSTMENT BEFORE 01.06.2015. IT DOES NOT MEAN THAT THE ASSESSING OFFICER CANNOT PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEE FOR THE DELAY IN FILING THE STATEMENT AS REQUIRED UNDER SECTION 200(3) OF THE ACT. 9. THE CONTENTION OF THE ASSESSEE CAN ALSO BE EXAMINED IN THE LIGHT OF THE PROVISIONS OF INDIAN P ENAL CODE. SECTION 396 OF INDIAN PENAL CODE PROVIDES FOR - - ITA 966/1 5 6 PUNISHMENT FOR DACOITY WITH MURDER. THE PUNISHMENT IS IMPRISONMENT FOR LIFE OR RIGOROUS IMPRISONMENT F OR A TERM WHICH MAY BE EXTENDED TO TEN YEARS AND ALSO LIABLE TO FINE. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING SECTION 396 OF INDIAN PENAL CODE, HEREUNDER:- 396. DACOITY WITH MURDER IF ANY ONE OF FIVE OR MO RE PERSONS, WHO ARE CONJOINTLY COMMITTING DACOITY, COMMITS MURDER IN SO COMMITTING DACOITY, EVERY ONE OF THOSE PERSONS SHALL BE PUNISHED WITH DEATH, OR IMPRISONMENT FOR LIFE, OR RIGOROUS IMPRISONMENT FOR A TERM WHICH MAY EXTEND TO TEN YEARS, AND SHALL ALSO BE LIABLE TO FINE . SIMILARLY, SECTION 408 OF INDIAN PENAL CODE PROVIDE S FOR CRIMINAL BREACH OF TRUST BY A CLERK OR SERVANT. IN ADDITION TO IMPRISONMENT WHICH MAY EXTEND TO SEVEN YEARS, THE ACCUSED WHO IS FOUND TO BE GUILTY SHALL ALSO BE LIABLE TO FINE. SIMILARLY, THE OTHER PROVIS IONS OF INDIAN PENAL CODE ALSO SAY THAT IN ADDITION TO IMPRISONMENT, THE ACCUSED SHALL BE LIABLE TO PAY FI NE. THE LANGUAGE USED BY THE PARLIAMENT IN INDIAN PENAL CODE IS SHALL ALSO BE LIABLE TO FINE. THIS MEANS THAT THE MAGISTRATE OR SESSIONS JUDGE, WHO TRIES THE ACCUSED FOR AN OFFENCE PUNISHABLE UNDER THE PROVISIONS OF INDIAN PENAL CODE, IN ADDITION TO PUNISHMENT OF IMPRISONMENT, SHALL ALSO LEVY FINE. I F THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEES IS ACCEPTED, THEN THE MAGISTRATE OR SESSIONS JUDGE, AS THE CASE MAY BE, WHO IS TRYING THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER INDIAN PENAL CODE, MAY NOT HAVE AUTHORITY TO LEVY FINE. 10. IT IS WELL KNOWN PRINCIPLE THAT THE FINE PRESCR IBED UNDER THE INDIAN PENAL CODE HAS TO BE LEVIED BY THE CONCERNED MAGISTRATE OR SESSIONS JUDGE WHO IS TRYING THE OFFENCE PUNISHABLE UNDER THE INDIAN PENA L CODE. THEREFORE, THE CONTENTION OF THE LD. COUNSEL THAT MERELY BECAUSE THE PARLIAMENT HAS USED THE - - ITA 966/1 5 7 LANGUAGE HE SHALL BE LIABLE TO PAY BY WAY OF FEE, THE ASSESSEE HAS TO PAY THE FEE VOLUNTARILY AND THE ASSESSING OFFICER HAS NO AUTHORITY TO LEVY FEE COUL D NOT BE ACCEPTED. NO ONE WOULD COME FORWARD TO PAY THE FEE VOLUNTARILY UNLESS THERE IS A COMPULSION UN DER THE STATUTORY PROVISION. THE PARLIAMENT WELCOMES TH E CITIZENS TO COME FORWARD AND COMPLY WITH THE PROVISIONS OF THE ACT BY PAYING THE PRESCRIBED FEE BEFORE FILING THE STATEMENT UNDER SECTION 200(3) OF THE ACT. HOWEVER, IF THE ASSESSEE FAILS TO PAY THE FEE BEFORE FILING THE STATEMENT UNDER SECTION 200(3) OF THE ACT, THE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT IN PASSING A SEPARATE ORDER LEVYING SUCH A FEE IN ADDITION TO PROCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT. IN OTHER WORDS, BEFORE 01.06.2015, THE ASSESSING AUTHORITY COULD PASS A SEPARATE ORDER UNDER SECTION 234E LEVYING FEE FOR DELAY IN FILING THE STATEMENT UNDER SECTION 200(3) OF THE ACT. HOWEVER, AFTER 01.06.2015, THE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT TO LEVY FEE UNDER SECTION 234E OF THE ACT EVEN WHILE PROCESSING THE STATEMENT UNDER SECTION 200A AND MAKING ADJUSTMENT. 11. IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER H AS EXCEEDED HIS JURISDICTION IN LEVYING FEE UNDER SECT ION 234E WHILE PROCESSING THE STATEMENT AND MAKE ADJUSTMENT UNDER SECTION 200A OF THE ACT. THEREFORE , THE IMPUGNED INTIMATION OF THE LOWER AUTHORITIES LEVYING FEE UNDER SECTION 234E OF THE ACT CANNOT BE SUSTAINED IN LAW. HOWEVER, IT IS MADE CLEAR THAT IT IS OPEN TO THE ASSESSING OFFICER TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEE PROVIDED THE LIMITATION FOR SUCH A LEVY HAS NOT EXPIRED. ACCORDINGLY, THE INTIMATION UNDER SECTION 200A AS CONFIRMED BY THE CIT(APPEALS) IN SO FAR AS LEVY OF FEE UNDER SECTION 234E IS SET ASIDE AND FEE LEVIED IS DELETED. HOWEVER, THE OTHER ADJUSTMENT MADE BY THE ASSESSING OFFICER IN THE IMPUGNED INTIMATION SHALL STAND AS SUCH. - - ITA 966/1 5 8 12. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEES ARE ALLOWED AS INDICATED ABOVE. 4. IN VIEW OF THE ABOVE ORDER OF THE TRIBUNAL, WE A RE INCLINED TO TAKE A CONSISTENT VIEW AND ALLOW THE APPEAL OF T HE ASSESSEE ON SIMILAR LINES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED ON FRIDAY, THE 16 TH OF OCT., 2015 AT CHENNAI. SD/- SD/- ( . $ % ) ( & ' ( ) ) *+,-./01023 45067.082290.:3 ; $< /JUDICIAL MEMBER ! $<=>>2-6?06?@ABCA. &; /CHENNAI, D$ /DATED, THE 16 TH OCT., 2015. MPO* $E FGHG /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. I3 /CIT(A) 4. I /CIT 5. GJ% K /DR 6. %LM /GF.