P3P VENTURES PVT. LTD., GURGAON V. DCIT, CPC(TDS), GHAZIABAD

MA 258/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3216 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-05-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 28-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay; TDS
• Section: 234E; 200A; 201; 254(2)

Judgement Text

1 MA nos. 257 to 264/Del/2019 P3P Ventures Pvt. Ltd. Vs. DCIT IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC”: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER M.A. No. 257/Del/2019[In ITA no. 7593/Del/2017-A.Y. 2014-15] M.A. No. 258/Del/2019[In ITA no. 7594/Del/2017-A.Y. 2014-15] M.A. No. 259/Del/2019[In ITA no. 7595/Del/2017-A.Y. 2014-15] M.A. No. 260/Del/2019[In ITA no. 7596/Del/2017-A.Y. 2014-15] M.A. No. 261/Del/2019[In ITA no. 7597/Del/2017-A.Y. 2014-15] M.A. No. 262/Del/2019[In ITA no. 7598/Del/2017-A.Y. 2015-16] M.A. No. 263/Del/2019[In ITA no. 7599/Del/2017-A.Y. 2015-16] M.A. No. 264/Del/2019[In ITA no. 7600/Del/2017-A.Y. 2015-16] P3P Ventures Pvt. Ltd., Flat No. 1401, Tower No. 22, Orchid Petals, Sector-49, Sohna Road, Gurgaon, Pin-122001, Haryana PAN: RTKPO6195A Vs DCIT, CPC(TDS), Ghaziabad, Uttar Pradesh. APPLICANT RESPONDENT Applicant by Sh. Anil Jain, Adv. Respondent by Sh. Om Prakash, Sr. DR Date of hearing 13.05.2022 Date of pronouncement 16.08.2022 O R D E R PER KUL BHARAT, JM:`` These miscellaneous applications have been preferred by the assessee, seeking rectification of the consolidated order dated 28.05.2018 passed by the ITAT Delhi Bench “SMC” in ITA nos. 7593 to 7600/Del/2017 for assessment years 2014-15 & 2015-16. 2 MA nos. 257 to 264/Del/2019 P3P Ventures Pvt. Ltd. Vs. DCIT 2. Since common contentions have been made by the assessee in all the misc. applications, the same were heard together and are being disposed of by a consolidated order, for the sake of convenience. 3. For the sake of clarity, we reproduce the contents of M.A. No. 257/Del/2019 (in ITA no. 7593/Del/2017 for A.Y. 2014-15), as under: “1. The captioned appeal, filed by the assessee has been decided by SMC Bench of the Income Tax Appellate Tribunal vide their consolidated order dated 28 th May 2018. A copy of the order is enclosed as Annexure-A. 2. In the said order the appeals filed by the assessee for the Assessment Years 2014-15 and 2015-16 (Total 8) has been dismissed by the Hon’ble Tribunal by observing at page 11-12 para 4.1 as under: " This provision provides for the levy of fees where a person fails to deliver or cause to be deliver a statement within the time prescribed in Section 200(3) of the I.T. Act or proviso to sub section(3) of section 206Cof the I.T. Act I confirm the order of the Ld. CIT(A) and dismiss all the appeals of the assessee." 3. The adjudication has been made by the Ld. CIT(A) and also by the Hon'ble Tribunal on the issue of : a) Condonation of delay and b) Constitutional validity of Section 234E , which are not appealable before CIT(A). 4. Whereas the grounds of appeal and the contentions are different , which are : a) Condonation of delay : (PB-5 (Para 3.5 and 3.6) and PB-6 Para 3.9 and 3.10. It is submitted that the appeal is filed in time from the date of receipt of order by the appellant and in case presumption is taken for the service of order online than the application for the condonation of delay is filed and relied on the following judicial pronouncement • Collector of Land Acquisition Vs. Mst. Katiji & Others (1987) 167 ITR 471 SC • Concard of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi & Others 118 ITR 507 3 MA nos. 257 to 264/Del/2019 P3P Ventures Pvt. Ltd. Vs. DCIT But the above judgments has not been considered or discussed in dismissing the appeal either by the CIT(A) and also by the Hon'ble court. Further there is only a presumption of service of order and there is no evidence of service of order b) Charging of Fee under section 234E The constitutional validity has not been challenged but it is submitted and argued as per PB Page 6 to 9 Para 4 that it is only after 01/06/2015 that the late fees provided u/s 234E of the Act can be imposed / recovered by the department from the assessee by way of issuing order/intimation u/s 200A of the Act since there was no such provision in section 200A prior to amendment made and effective from 1st June 2015 even though the section 234E came into existence wef. 1-7-2012. The orders charging late fee u/s 234E has been made u/s 200A and all the orders has been passed prior to 1 st June 2015 so the same are illegal and without the authority of law and liable to be quashed . The submissions made are: 4.1 As per the initial provisions of sec.200A of the Act it does not permit processing of TDS statement for default in payment of late fees, except any arithmetical error, or incorrect claim, or default in payment of interest and TDS payable or refundable etc. Hence late fees for TDS quarterly statement as provided u/s 234E is not covered in the powers provided by way of processing under section 200A. Consequential amendment was brought by Finance Act, 2015 to include the levy of the late fee chargeable u/s 234 E in the ambit of section 200A , wherein in sub-section (1), for clauses (c) to (e), the following clauses has been substituted with effect from the 1st day of June, 2015, namely:— (c) the fee, if any, shall be computed in accordance 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 the amount computed under clause (b)and clause (c) against any amount paid under section 200 or section 201 or section 234E and any amount paid otherwise by way of tax or interest or fee; (e) an intimation shall be prepared or generated and sent to the deductor specifying the sum determined to be payable by, or the amount of refund due to, him under clause (d); and (f) the amount of refund due to the deductor in pursuance of the determination under 4 MA nos. 257 to 264/Del/2019 P3P Ventures Pvt. Ltd. Vs. DCIT clause (d) shall be granted to the deductor." 4.2 Thus it is only after 01/06/2015 that the late fees provided u/s 234E of the Act can be imposed / recovered by the department from the assessee by way of issuing order/intimation u/s 200A of the Act since there was no such provision in section 200A prior to amendment made and effective from 1 st June 2015 even though the section 234E came into existence wef. 1-7-2012. 4.3 The orders charging late fee u/s 234E has been made u/s 200A and all the orders has been passed prior to 1 st June 2015 so the same are illegal and without the authority of law and liable to be quashed . 4.4 There are various judicial pronouncements which have reinforced the above legal situation and provided relief to the assessee on whom order u/s 200A of the Act has been passed prior to 01/06/2015 for the recovery of late fees u/s 234E. Sibia Healthcare (P) Ltd. I/s. DCIT (2015) 121 DTR (Asr.) (Trib) 81 Held : In view of the above discussions, in our considered view, the adjustment in respect of the levy of fees u/s 234E was indeed beyond the scope of permissible adjustments contemplated u/s 200A. This intimation is an appealable order u/s 246A(a), and therefore the CIT(A) ought to have examined legality of the adjustment made under this intimation in the light of the scope of the section 200A. Learned CIT(A) has not done so. He has justified the levy of fees on the basis of the provisions of section 234E. That is not the issue here. The issue is whether such a levy could be effected in the course of intimation under section 200A. The answer is clearly in negative. No other provision enabling a demand in respect of this levy has been pointed out to us and it is thus an admitted position that in the absence of the enabling provisions under section 200A, no such levy could be effected...". Similar view has been taken in the following: b) Fatheraj Singhavi & Others Vs. UOI Writ appeal No. 2663-2674 /2015 (T-IT) dated 26-8-2016 Kernataka High court. (2016) 289 CTR (Kar)602. c) Smt. G.Indhirani and others Vs. DCIT 245 ITR (Trib) 439 (Chennai) 5 MA nos. 257 to 264/Del/2019 P3P Ventures Pvt. Ltd. Vs. DCIT d) ITO (TDS) and others \/S. LIC and others IT A no 1930, 1931 /D/2014 etc. Dated 8-10-2015 by G Bench ITAT Delhi. e) Khana Watches Ltd. I/s. DCIT (CPC) -TDS ITA NO 731- 735/CHD/2015 dated 29-10-2015 f) Gajanand Constructions & Others Vs. DCIT(CPC)TDS Ghziabad (2016) 161 ITD 313 (Pune) 4.11 Another lacuna in the legal status of the provisions of section 234E of the Act are that, as per sub section (3) though it was made mandatory to deposit the late fee as provided in the section before /at the time of filing of TDS statements, but the system has accepted the TDS returns without the fee provided u/s 234E . All the returns filed by the appellant has been accepted without payment of late fees. The above submissions and the case laws has not been taken into consideration while deciding the issue. 5. In view of the above facts and submissions it is apparent that there is a mistake apparent from the record so in the in the interest of justice the above orders may please be recalled and an opportunity of hearing may please be allowed.” 4. Learned counsel for the assessee reiterated the submissions as made in the misc. applications and submitted that the Tribunal failed to take note of the binding precedence, wherein it has been held that if the order passed u/s 200A was prior to 1.6.2015 then no late fee, provided u/s 234E of the Act, can be imposed. He submitted that non-consideration of the legal position and the binding precedence would tantamount to a mistake apparent on record and the same is required to be rectified u/s 254(2) of the Act. 5. Learned DR opposed the submissions and supported the order of the Tribunal. He submitted that by the present misc. applications the assessee is 6 MA nos. 257 to 264/Del/2019 P3P Ventures Pvt. Ltd. Vs. DCIT seeking review of the order of the Tribunal which is not permissible under law. The Hon’ble Supreme Court in the case of Reliance Telecom Ltd. has categorically dealt with the scope and ambit of the powers of the Tribunal conferred u/s 254(2) of the Act. Therefore, he submitted that the present misc. applications ought to be dismissed. 6. I have heard rival contentions and perused the material available on record. It is pointed out by the learned counsel for the assessee that the Tribunal lost sight by not following binding precedents inadvertently, more particularly, in view of undisputed fact that the assessee had also raised a plea regarding applicability of provisions of Section 234E in respect of the orders passed prior to 1 st June, 2015. This contention inadvertently was not adverted by the Tribunal. Therefore, I my considered view this tantamount to mistake apparent from records ad would fall within the preview of Section 254(2) of the Act. The facts of this case are distinguishable from the case law relied by the learned DR. I, therefore, considering the material available on record recall the order the dated 28.05.2018 for a limited purpose to consider the judicial precedents, as cited by the learned counsel for the assessee with regard to contention of the assessee that Section 234E would not be applicable in the case of assessee, since the order was passed prior to 1 st June, 2015. The Registry is hereby directed to fix the hearing of appeal in due course. 7 MA nos. 257 to 264/Del/2019 P3P Ventures Pvt. Ltd. Vs. DCIT 7. In the result, assessee’s misc. application stands allowed in terms as indicated above. Order pronounced in open court on 16 th August, 2022. Sd/- (KUL BHARAT) JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI