Income Tax Appellate Tribunal - Panji
Swami Vivekanand Vidyalaya ,, Nashik vs Deputy Commissioner Of Income-Tax, Cpc ... on 21 December, 2017
आयकर अपीलीय अिधकरण पु णे ायपीठ "बी" पु णे म
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "B", PUNE
सु ी सु षमाचावला, ाियक सद एवं ी अिनल चतु वदी, लेखासद के सम"
BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM
Sl. ITA No. Name of Appellant Name of Asst. Quarter Form
No. Respondent Year
1-10 2377/PUN/2017 Swami Vivekanand DCIT(CPC)- 2013-14 Qr-3 24Q
to Vidyalaya, TDS, 2013-14 Qr-4 24Q
2386/PUN/2017 At Post Erandgaon, Ghaziabad, 2014-15 Qr-1 24Q
Yeola, UP 2014-15 Qr-2 24Q
Nashik - 423 401 2014-15 Qr-3 24Q
PAN :NSKS07595A 2014-15 Qr-4 24Q
2015-16 Qr-1 24Q
2015-16 Qr-2 24Q
2015-16 Qr-3 24Q
2015-16 Qr-4 24Q
11-12 2072/PUN/2017 Medical ACIT(CPC)- 2013-14 Qr-4 24Q
& Superintendent TDS, & Qr-4 24Q
2073/PUN/2017 Rural Hospital, Ghaziabad, 2014-15
Surgana, UP
Nashik - 422 203
PAN : NSKR02193C
अपीलाथ की ओर से / Appellant by : Shri Sanket Joshi
थ की ओर से / Respondent by : Dr. Vivek Aggarwal
सुनवाई की तारीख / घोषणा की तारीख /
Date of Hearing : 20.12.2017 Date of Pronouncement: 21.12.2017
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
This bunch of appeals filed by two different assessees are against orders of CIT(A)-3, Nashik, dated 30-06-2017 and 25-07-2017 respectively relating to different assessment years against orders passed under section 154 of the Income-tax Act, 1961 (in short 'the Act').
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2. The bunch of present appeals relating to two different assessees were heard together and are being disposed of by this consolidated order as the issue raised in all these appeals was similar.
3. We shall take up the appeals pertaining to Swami Vivekanand Vidyalaya first. For the sake of reference to facts and issues, we shall refer to the facts & issue in ITA No.2377/PUN/2017. The assessee has raised the following grounds of appeal :
"The following grounds are taken without prejudice to each other-
On facts and in law, 1] The learned CIT(A) erred in upholding the order u/s 154 passed by the DCIT, CPC (TDS), Ghaziabad and thereby confirming the levy of late fee u/s 234E of Rs.4,000/- in the intimation generated u/s 200A passed in respect of the TDS statement filed in Form 24Q for Quarter 3 of A.Y.2013 -14.
2] The learned CIT(A) failed to appreciate that in respect of the TDS statements filed for the period prior to 01.06.2015, the late fee u/s 234E could not have been levied in the intimation order u/s 200A and hence, the levy of late fee in respect of the TDS statement filed in the instant case for Quarter 3 of A.Y.2013 - 14 was not justified in the intimation passed u/s 200A of the Act.
3] Without prejudice to the above ground, it is submitted that the TDS had been duly deposited within the stipulated time and there was a reasonable cause on the part of the appellant school which resulted into delay in filing the TDS statement and therefore, the levy of late fee would result into genuine hardship to the assessee and hence, the same ought to have been deleted on the facts of the case.
4] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal.
4. The learned Authorized Representative for the assessees at the outset pointed out that the issue raised in the present set of appeals is squarely covered by the earlier orders of Tribunal in the case of Vidya Vardhani Education and Research Foundation and others Vs. DCIT (CPC)-TDS, Ghaziabad in ITA Nos.1887/PUN/2016 to 1893/PUN/2016 and others relating to assessment years 2013-14 and 2014-15, order dated 13-01-2017 and in the 3 case of Shailendra Nathulal Patni in ITA Nos. 2929 to 2934/PUN/2016 relating to assessment year 2013-14, order dated 17-03-2017.
5. Briefly, in the facts of the case, the assessee was required to deduct tax at source out of payments made on account of interest for the respective quarters in the accounting periods 2012-13, 2013-14 and 2014-15. The assessee was required to file quarterly TDS returns intimating the tax deducted at source from various payments made in each of the quarter, as per section 200(3) of the Act. Further, the requirement of the Act was to file the said TDS returns within stipulated period as provided under the section. Admittedly, in the present appeals, the TDS returns were filed belatedly. The Assessing Officer while processing the TDS returns issued intimation to the respective assessee under section 200A of the Act and levied late filing fees under section 234E of the Act. Thereafter, the assessee moved an application online for rectification under section 154 of the Act and the Assessing Officer for the respective quarters in the respective assessment years has passed the orders under section 154 of the Act.
6. In appeal, the CIT(A) held that the Assessing Officer was empowered to raise the said demand under section 234E of the Act while issuing intimation under section 200A of the Act.
7. The issue which arises in the present set of appeals is against intimation issued by the Assessing Officer under section 200A of the Act, wherein fees payable under section 234E of the Act have been charged by the Assessing Officer. The Legislature had inserted clause (c) to section 200A(1) of the Act specifically w.e.f. 01.06.2015 and the case of assessee before us was that in such circumstances where the said amendment was introduced w.e.f. 4 01.06.2015 and there was nothing to suggest that the said amendment was clarificatory or retrospective in nature, then no such late fees could be charged under section 234E of the Act in respect of TDS statements which were filed prior to 01.06.2015.
8. The assessee is in appeal against the orders of authorities below.
9. We have heard the rival contentions and perused the record. The issue arising in the present appeals i.e. against levy of fees under section 234E of the Act while issuing intimation under section 200A of the Act arose before the Tribunal in bunch of appeals. The Tribunal vide order dated 21.09.2016 with lead order in ITA Nos.560/PN/2016 & 561/PN/2016, 1018/PN/2016 to 1023/PN/2016 in Maharashtra Cricket Association Vs. DCIT (CPC)-TDS, Ghaziabad, relating to assessment years 2013-14 and 2014-15 for the respective quarters deliberated upon the issue and held as under:-
"34. Accordingly, we hold that the amendment to section 200A(1) of the Act is procedural in nature and in view thereof, the Assessing Officer while processing the TDS statements / returns in the present set of appeals for the period prior to 01.06.2015, was not empowered to charge fees under section 234E of the Act. Hence, the intimation issued by the Assessing Officer under section 200A of the Act in all these appeals does not stand and the demand raised by way of charging the fees under section 234E of the Act is not valid and the same is deleted. The intimation issued by the Assessing Officer was beyond the scope of adjustment provided under section 200A of the Act and such adjustment could not stand in the eye of law."
10. The said proposition has been applied in the next bunch of appeals with lead order in Vidya Vardhani Education and Research Foundation in ITA No.1887 to 1893/PUN/2016 and others relating to assessment years 2013-14 and 2014-15 vide order dated 13-01-2017 which has been relied upon by the Ld. Authorized Representative for the assessee.
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11. The issue arising in the present appeals is identical to the issue before the Tribunal in bunch of appeals and where the amendment to section 200A(1) of the Act is procedural in nature, then the Assessing Officer while processing the TDS statements / returns in the present set of appeals for the period prior to 01.06.2015, was not empowered to charge fees under section 234E of the Act. Accordingly, intimation issued by the Assessing Officer under section 200A of the Act in all the appeals does not stand and the demand raised by charging the fees under section 234E of the Act is not valid and the same is deleted. The grounds of appeal raised by the assessee are thus, allowed.
12. The facts and issue in ITA Nos.2377/PUN/2017 are identical to the facts and issue in ITA Nos.2378 to 2386/PUN/2017 and our decision in ITA No. No. 2377/PUN/2017 shall apply mutatis mutandis to ITA Nos.2378 to 2386/PUN/2017
13. We shall now take up the appeals pertaining to Medical Superintendent Rural Hospital. In these two appeals also, the assessee had raised similar grounds of appeal. Therefore, for the sake of reference to facts and issues, we shall refer to facts and issues in ITA No.2072/PUN/2017. The assessee has raised the following grounds of appeal :
"The following grounds are taken without prejudice to each other -
On facts and in law, I] The learned CIT(A) erred in upholding the order u/s 154 by the ACIT, CPC (TDS), Ghaziabad and thereby confirming the levy of late fee u/s 234E of Rs.25,400/- in the intimation generated u/s 200A dated 07.08.2014 passed in respect of the TDS statement filed in Form 24Q for Quarter 4 of A.Y.2013 -
14. 2] The learned CIT(A) failed to appreciate that the levy of late fee u/s 234E in the intimation u/s.200A dated 07.08.2014 was bad in law in view of the binding decisions of Hon 'ble Jurisdictional ITAT Pune in the case of Gajanan Constructions & Ors. v. DCIT [161 ITD 313] dated 23.09.2016 and Maharashtra 6 Cricket Association v. DCIT [ITA No.560/PN/2016] dated 21.09.2016 and hence, the late fee u/s 234E levied in the instant case ought to have been deleted. 3] The learned CIT(A) ought to have appreciated that the decision of Jurisdictional ITAT was binding on the lower authorities as per the law laid down by Hon'ble Bombay High Court in the case of Bank of Baroda v. H.C. Shrivastava [256 ITR 385] and thus, the levy of late fee u/s 234E in the intimation u/s 200A was not justified and ought to have been deleted. 4] The learned CIT(A) erred in not appreciating that the levy of late fee u/s. 234E in the intimation u/s 200A was contrary to the law laid down by Jurisdictional Tribunal which was binding on the lower authority as per the decision of Hon'ble Bombay High Court and thus, the ACIT had in turn not followed the law laid down by Hon'ble Jurisdictional High Court while levying the late fee u/s 234E in the intimation u/s 200A and therefore, not following the decision of Hon'ble Jurisdictional H.C. was a mistake apparent from record which should have been rectified by way of an order u/s 154 of the Act. 5] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal."
14. We find the facts and issue in ITA No.2377/PUN/2017 are also identical to the facts and issue in ITA Nos.2072 & 2073/PUN/2017 and our decision in ITA No. 2377/PUN/2017 shall apply mutatis mutandis to ITA Nos.2072 & 2073/PUN/2017.
15. Further, before parting, we may also refer to the order of the CIT(A) in these two appeals. The CIT(A) had dismissed the appeals of the assessee being delayed for a period of two and half years. The CIT(A) had taken the date of intimation under section 200A(3) dated 07-08-2014 and computed the delay in filing the appeal late before him. However, the assessee had filed the appeal before the CIT(A) against the order passed under section 154 of the Act. The said application for rectification under section 154 was filed on 08-06-2017/09- 03-2017 in the respective years. The said application was decided by the Assessing Officer on 09-06-2017. The assessee filed an appeal against the dismissal of the rectification application filed under section 154 of the Act. The said fact is clear from the perusal of Form No.35 with special reference to Column 2(a) and 2(b). In the entirety of the above said facts and circumstances, 7 we find no merit in the order of CIT(A) in the case of Medical Superintendent Rural Hospital, Surgana in dismissing the appeal in-limine being filed beyond the period of limitation. We have already decided the issue on merits in favour of assessee.
16. In the result, all the appeals of respective assessees are allowed.
Order pronounced on this 21st day of December, 2017 Sd/- Sd/-
(ANIL CHATURVEDI) (SUSHMA CHOWLA) लेखा सद / ACCOUNTANT MEMBER ाियक सद / JUDICIAL MEMBER पुणे / Pune; िदनां क Dated : 21st December, 2017. Satish
आदे श की $ितिलिप अ%े िषत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. थ / The Respondent
3. CIT(A)-3, Nashik/concerned CIT(A)
4. CIT, (TDS), Pune / concerned CIT
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, "बी" / DR, ITAT, "B" Pune;
गाड% फाईल / Guard file.
6.
आदे शानु सार/ BY ORDER,स ा स ािपत ित //True Copy// Sr. Private Secretary ITAT, Pune