The ITO,TDS-2, Ahmedabad V. Nimaben Rameshbhai Thakkar, Ahmedabad

MA 212/AHD/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4128 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-02-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 31-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: RUPESH R SHAH
• Keywords: TDS
• Section: 154

Judgement Text

MA NO. 212/AHD/2018 ITO VS. NIMABEN RAMESHBHAI THAKKAR ASSESSMENT YEAR: 2014-15 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, VP AND MS. MADHUMITA ROY, JM] M.A. NO. 212/AHD/2018 (IN ITA NO. 3111/AHD/2015) ASSESSMENT YEAR: 2014-15 THE INCOME TAX OFFICER ..................AP PLICANT TDS-2, AHMEDABAD VS. NIMABEN RAMESHBHAI THAKKAR ..... .......................RESPONDENT B-201, POOJAN APPARTMENT, OPP. SEEMA HALL, 100 FT RING ROAD, SATELLITE, AHMEDABAD-380015 [PAN : ACHPT 7031 K] APPEARANCES BY: LALIT P JAIN, FOR THE APPLICANT RUPESH R SHAH, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 01.02.2019 DATE OF PRONOUNCING THE ORDER : 11.02.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: 1. BY WAY OF THIS RECTIFICATION PETITION, THE APPLI CANT ASSESSING OFFICER SEEKS RECALL OF THE ORDER DATED 04.01.2018 PASSED BY THE TRIBUNAL FOR THE FOLLOWING REASON:- 4. PERUSAL OF THE ITAT ORDER DATED 04.01.2018 REVE ALS THAT HONBLE ITAT HAS NOT GONE INTO THE MERITS OF THE MATTER. THE HONBL E ITAT ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE FACT THAT, ON THIS SAM E ISSUE THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF RAJESH KOURANI VS. UNION OF INDIA AND OTHERS REPORTED IN (2017) 83 TAXMANN.COM 137 (GUJARAT) JUD GEMENT DATED 20.06.2017 HAVE CLEARLY HELD THAT PROVISIONS OF SEC TION 200A ARE MACHINERY PROVISIONS AND THESE PROVISIONS CANNOT OVERRIDE THE CHARGING PROVISIONS INSERTED WITH EFFECT FROM 01.07.2012 BY SECTION 234 E OF THE ACT. IN NUTSHELL, AS PER THE JUDGEMENT OF HIGH COURT THE PROVISIONS O F SECTION 234E ARE CLEARLY OPERATIVE WITH EFFECT FROM 01.06.2012. HOWEVER, DE SPITE THIS CLEARLY POSITION OF LAW AS ALSO PROPOUNDED BY THE HONBLE JURISDICTI ONAL HIGH COURT, STILL ASSESSEES APPEAL HAVE BEEN ALLOWED HOLDING THE CON TRARY IN THE CAPTIONED CASE. 2. HEARD THE PARTIES AND PERUSED THE MATERIAL ON RE CORD. 3. THE PLEA IS INDEED WELL TAKEN. HONBLE JURISDIC TIONAL HIGH COURT, IN THE CASE OF RAJESH KOURANI VS. UNION OF INDIA [(2017) 83 TAXMAN N.COM 137 (GUJARAT)] HAS, INTER ALIA, OBSERVED AS FOLLOWS:- MA NO. 212/AHD/2018 ITO VS. NIMABEN RAMESHBHAI THAKKAR ASSESSMENT YEAR: 2014-15 PAGE 2 OF 2 20. EVEN IN ABSENCE OF SECTION 200A OF THE ACT WIT H INTRODUCTION OF SECTION 234E, IT WAS ALWAYS OPEN FOR THE REVENUE TO DEMAND AND COLLECT THE FEE FOR LATE FILING OF THE STATEMENTS. SECTION 200A WOULD M ERELY REGULATE THE MANNER IN WHICH THE COMPUTATION OF SUCH FEE WOULD BE MADE AND DEMAND RAISED. IN OTHER WORDS, WE CANNOT SUBSCRIBE TO THE VIEW THAT W ITHOUT A REGULATORY PROVISION BEING FOUND FOR SECTION 200A FOR COMPUTAT ION OF FEE, THE FEE PRESCRIBED UNDER SECTION 234E CANNOT BE LEVIED. ANY SUCH VIEW WOULD AMOUNT TO A CHARGING SECTION YIELDING TO THE MACHINERY PRO VISION. IF AT ALL, THE RECASTED CLAUSE (C) OF SUB-SECTION (1) OF SECTION 200A WOULD BE IN NATURE OF CLARIFICATORY AMENDMENT. EVEN IN ABSENCE OF SUCH PROVISION, AS NO TED, IT WAS ALWAYS OPEN FOR THE REVENUE TO CHARGE THE FEE IN TERMS OF SECTI ON 234E OF THE ACT. BY AMENDMENT, THIS ADJUSTMENT WAS BROUGHT WITHIN THE F OLD OF SECTION 200A OF THE ACT. THIS WOULD HAVE ONE DIRECT EFFECT. AN ORDE R PASSED UNDER SECTION 200A OF THE ACT IS RECTIFIABLE UNDER SECTION 154 OF THE ACT AND IS ALSO APPEALABLE UNDER SECTION 246A. IN ABSENCE OF THE PO WER OF AUTHORITY TO MAKE SUCH ADJUSTMENT UNDER SECTION 200A OF THE ACT, ANY CALCULATION OF THE FEE WOULD NOT PARTAKE THE CHARACTER OF THE INTIMATION U NDER SAID PROVISION AND IT COULD BE ARGUED THAT SUCH AN ORDER WOULD NOT BE OPE N TO ANY RECTIFICATION OR APPEAL. 4. UNDOUBTEDLY, THE DECISION OF THE TRIBUNAL IS NOT IN HARMONY WITH THE LAW SO LAID DOWN BY HONBLE JURISDICTIONAL HIGH COURT. WE HUMBLY BOW TO THE VIEWS EXPRESSED BY THEIR LORDSHIPS. ACCORDINGLY, THE IMP UGNED ORDER IS HEREBY RECALLED, AND THE MATTER IS FIXED FOR HEARING ON MERITS ON 12 TH MARCH, 2019. 5. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLO WED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 11 TH FEBRUARY, 2019. SD/- SD/- MS. MADHUMITA ROY PRA MOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, THE 11 TH FEBRUARY, 2019 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDE NT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: .....ORDER PREPARED AS PER T WO PAGE MANUSCRIPTS OF HONBLE VP, WHICH ARE ATTACHED WITH APPEAL FILE...... 07.02.2019 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: ... 07.02.2019........ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 11.02.2019... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 11.02.2019 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : .... 11.02.2019.. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......