GEETA STAR HOTELS & RESORTS P LTD., Jaipur V. DCIT, CPC-TDS, GHAZIABAD

MA 146/JPR/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7123 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 02-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ MA NO. 146/JP/17 ( ARISING OUT OF ITA NO. 14/JP/2017) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 GEETA STAR HOTELS & RESORTS PVT. LTD., GEETA ENCLAVE, VINOBHA MARG, C - SCHEME, JAIPUR. CUKE VS. THE DCIT, CPC, TDS, GHAZIABAD, (U.P.) LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: JPRS06903B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJEEV SOGANI (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJENDRA JHA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 10/08/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 21/08/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE COORDINATE BENCH IN ITA NO. 14/JP/2017 DATED 17.04.2017. 2. THE LD. AR HAS SUBMITTED THAT THE COORDINATE BEN CH HAS DISMISSED THE APPEAL OF THE ASSESSEE WITH RESPECT T O IMPOSITION OF FEES FOR LATE FILING OF TDS STATEMENT U/S 234E OF THE AC T WHILE PROCESSING THE M.A. NO. 146/JP/2017 GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT 2 TDS STATEMENT U/S 200A OF THE ACT PRIOR TO 01.06.20 15. IT WAS SUBMITTED THAT THE COORDINATE BENCH HAS MISPLACED I TS RELIANCE ON THE THE JUDGMENTS OF HONBLE BOMBAY HIGH COURT IN THE C ASE OF RASHMIKANT KUNDALIA VS.UNION OF INDIA (2015) 229 TAXMAN 596 AN D HONBLE RAJASTHAN HIGH COURT IN THE CASE OF DUNDLOD SHIKSHA N SANSTHAN VS. UNION OF INDIA (2015) 63 TAXMANN.COM 243 AS THE ISS UE INVOLVED IN THESE DECISIONS WERE REGARDING CONSTITUTIONAL VALID ITY OF SECTION 234E OF THE ACT. IT WAS FURTHER SUBMITTED THAT THE COORDIN ATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S SANDEEP JHANWAR ADVISOR Y SERVICES PVT. LTD. VS. TDS CPC IN ITA NO. 722 & 723/JP/2016 DATED 18.1 0.2016 AND M/S MENTOR INDIA LIMITED VS. DCIT IN ITA NO. 738/JP/201 6 DATED 16.12.2016, PRONOUNCED PRIOR TO THE DATE OF THE IMP UNGED ORDER, HAS ADJUDICATED THE SIMILAR MATTER IN FAVOUR OF THE ASS ESSEE COMPANY, EVEN AFTER TAKING A NOTE OF THE JUDGMENTS OF HONBLE MOM BAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIS (SUPRA) AND DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (SUPRA). IT WAS ACCORDI NGLY SUBMITTED THAT NON-CONSIDERATION OF THE JUDGMENTS OF COORDINATE BE NCH WHILE DECIDING THE IMPUNGED MATTER IS A MISTAKE APPARENT ON THE RE CORD. 3. THE LD. DR IS HEARD WHO HAS SUBMITTED THAT THE C OORDINATE BENCH HAS RELIED ON THE ORDER OF HONBLE JURISDICTIONAL H IGH COURT IN CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA & OTHE RS VIDE ORDER DATED 28.07.2015 AND THEREFORE, THERE IS NO MISTAKE WHICH IS APPARENT FROM RECORD WHICH REQUIRES RECTIFICATION U/S 254(2) OF THE ACT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE COORDINATE BE NCH IN CASE OF M/S M.A. NO. 146/JP/2017 GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT 3 MENTOR INDIA LIMITED VS. DCIT AND OTHERS IN ITA NO. 738/JP/2016 HAS CONSIDERED THE MATTER RELATING TO LEVY OF FEES U/S 234E OF THE ACT AND THE RELEVANT FINDINGS ARE CONTAINED IN PARA 8 WHICH ARE REPRODUCED AS UNDER:- 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND AL SO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. RECENT LY THE COORDINATE BENCH OF JAIPUR ITAT IN THE CASE OF M/S. SANDEEP JHANWAR ADVISORY SERVICES PVT. LTD. VS. THE TDS CPC, GAZIABAD IN ITA NO. 722 & 723/JP/2016 FOR THE A.Y. 2013-14 / Q- 3 & 4 HAS ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER:- 3.5. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE C ASE LAWS RELIED UPON BY THE LD. COUNSEL. WE FIND MERIT INTO THE CONTENTION OF LD. COUNSEL THAT HE JURISDICTIONA L HIGH COURT HAS DECIDED THE VALIDITY OF SECTION 234E, BUT HAS NOT DECIDE THE ISSUE OF POWER OF AO FOR LEVY OF TAX UNDER SECTION 234E IN THE JUDGMENT RENDERED IN THE CASE O F M/S. DUNDLOD SHIKSHAN SANSTHAN AND OTHERS (SUPRA) A S RELIED BY LD. CIT (A). WE HAVE CONSIDERED THE RECEN T DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CAS E OF SHRI FATHERAJ SINGHVI & ORS (SUPRA) WHEREIN THE ISS UE OF LEVY OF FEES U/S 234E ON STATEMENTS PROCESSED U/S 2 00A BEFORE 01.06.2015 HAS BEEN CATEGORICALLY DISCUSSED BY THE HONBLE HIGH COURT AND IN PARA 24 OF THE SAID O RDER IT WAS HELD THAT NO DEMAND FOR FEE U/S 234E CAN BE MA DE IN INTIMATION ISSUED FOR TDS DEDUCTED U/S 200A BEFO RE M.A. NO. 146/JP/2017 GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT 4 01.06.2015. WE HAVE ALSO GONE THROUGH THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP PVT. LTD. (SUPRA) WHEREIN THE HONBLE APEX COURT HAS DISCUSSED IN DETAIL THE GENERAL PRINCIPLE OF CONCERNING RETROSPECTIVELY AND HELD THAT UNLESS CON TRARY INTENTION APPEARS, A LEGISLATION IS PRESUMED NOT TO HAVE A RETROSPECTIVE OPERATION. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF HONBLE SUPREME COURT AND HONBLE KARNATAKA HIGH COURT, WE SET ASIDE THE ORDER OF LD. CIT (A) AND DIRECT THE AO TO DROP THE DEMAND RAISED OF RS. 4,200/- U/S 234E ON STATEMENTS PROCESSED U/S 200A BEFORE 01.06.2015. THUS GROUNDS RAISED BY THE ASSES SEE ARE ALLOWED. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (SUPRA) HAS DE CIDED THE ISSUE OF VIRES OF SECTION 234E OF THE ACT. THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. V S UNION OF INDIA & ORS. (SUPRA) HAS HELD THAT THE DEMAND U/S 2 00A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE U /S 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER U/ S 200A FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEARS PRIO R TO 1 ST JUNE, 2015. WHEN THE INTIMATION OF THE DEMAND NOTICES U/S 200A IS HELD TO BE WITHOUT AUTHORITY OF LAW SO FAR AS IT RE LATES TO COMPUTATION AND DEMAND OF FEE U/S 234E, THE QUESTIO N OF FURTHER SCRUTINY FOR TESTING THE CONSTITUTIONAL VALIDITY OF SECTION 234E WOULD BE RENDERED AS AN ACADEMIC EXERCISE. WE FIND THAT THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DU NDLOD SHIKSHAN M.A. NO. 146/JP/2017 GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT 5 SANSTHAN VS. UNION OF INDIA (SUPRA) HAS ALSO CONSID ERED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA (2015) 229 T AXMAN 596 WHEREIN THE HON'BLE HIGH COURT HAS DECIDED THE NATU RE OF DEMAND. THE HON'BLE HIGH COURT HAS HELD THAT SECTIO N 234E OF THE ACT IS NOT PUNITIVE IN NATURE BUT A FEE WHICH I S A FIXED CHARGE FOR THE EXTRA SERVICE WHICH THE DEPARTMENT HAS TO P ROVE DUE TO THE LATE FILING OF THE TDS STATEMENTS. HENCE FROM B OTH THE DECISIONS RELIED UPON BY THE LD. DR, THE ISSUE OF P OWER OF IMPOSING LATE FEE IS NOT DECIDED BUT THE HONBLE KA RNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. VS. UN ION OF INDIA & ORS. (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND HELD THAT THE LATE FEE U/S 234E OF THE ACT HAS RAIS ED VIDE IMPUGNED DEMAND NOTICE U/S 200A OF THE ACT. WE FIND FORCE IN THE CONTENTION OF THE LD. AR OF THE ASSESSEE. IF TH ERE IS CONFLICTING VIEWS TAKEN BY THE TWO HON'BLE COURTS, THEN THE VIE W, WHICH FAVOURS THE ASSESSEE SHOULD BE ADOPTED. IN THIS REG ARD, THE LD AR OF THE ASSESSEE HAS RELIED ON THE DECISION OF THE H ON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP P. LTD . (2014) 367 ITR 466 (SC). IN VIEW OF THE DECISION OF THE HON'BL E SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP (SUPRA ), THE DEMAND SO RAISED ARE DIRECTED TO BE DELETED. SIMILARLY IDENTICAL FINDINGS HAVE ALSO BEEN GIVEN I N ALL THE APPEALS OF OTHER ASSESSMENT YEARS. M.A. NO. 146/JP/2017 GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT 6 5. IN THE INSTANT CASE, THE COORDINATE BENCH VIDE I TS ORDER DATED 17.04.2017 HAS NOT CONSIDERED THE EARLIER DECISION IN CASE OF MENTOR INDIA LIMITED VS. DCIT AND OTHERS (SUPRA) DATED 16. 12.2016 AND HENCE, NON CONSIDERATION OF THE DECISION OF THE COORDINATE BENCH IS A MISTAKE WHICH IS APPARENT FROM RECORD WHICH CALL FOR RECTIF ICATION U/S 254(2) OF THE ACT. IN VIEW OF NONE CONSIDERATION OF THE EARLI ER DECISION PASSED BY THE COORDINATE BENCH DATED 16.12.2016, THE IMPUGNED ORDER PASSED BY THE COORDINATE BENCH DATED 17.04.2017 IS HEREBY REC ALLED FOR CONSIDERING THE EARLIER DECISION PASSED BY THE COOR DINATE BENCH AND THE REGISTRY IS DIRECTED TO FIX THE MATTER FOR HEARING IN DUE COURSE. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED WITH ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 21/08/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/08/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- GEETA STAR HOTELS & RESORTS PVT. LTD ., JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CPC TDS, GHAZIABAD, (U.P.) 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. M.A. NO. 146/JP/2017 GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT 7 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 146/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR