Income Tax Appellate Tribunal - Chandigarh
Sh. Vidit Jain, Shimla vs Dcit, Cpc, Tds, Vaishali on 29 January, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
DIVISION BENCH 'B', CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER
AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER
ITA No. 1399/Chd/2017
(Assessment Years: 2013-14)
Sh. Dalip Singh Rathore, Vs. The DCIT, CPC, TDS
Rathore Business Centre, Vaishali
BCS, Bye Pass Road
New Shimla
PAN: AFGPR3037M
TAN: PTLD12665C
ITA No. 1400/Chd/2017
(Assessment Year: 2014-15)
Sh. Dalip Singh Rathore, Vs. The DCIT, CPC, TDS
Rathore Business Centre, Vaishali
BCS, Bye Pass Road
New Shimla
ITA No. 1401/Chd/2017
(Assessment Year: 2013-14)
Sh. Umesh Kumar Sharma Vs. The DCIT, CPC, TDS
Krishna Dev Building, Dhalli, Vaishali
Shimla
PAN: ARLPS2373L
TAN: PTLU10842G
ITA No. 1402/Chd/2017
(Assessment Year: 2013-14)
Sh. Krishna Educational Society, Vs. The DCIT, CPC, TDS
Airport Road, Totu, Vaishali
Shimla
PAN: AABTK4511H
TAN: PTLK11641A
ITA No. 1403/Chd/2017
(Assessment Year: 2013-14)
Sh. Vidit Jain, Vs. The DCIT, CPC, TDS
Jain Traders, Bye Pass Road, Vaishali
Kasumpti, Shimla
PAN: AFDPJ2512C
TAN: PTLV11398C
2
ITA No. 1404/Chd/2017
(Assessment Year: 2013-14)
M/s. Ajay Kumar Sood Engineers Vs. The DCIT, CPC, TDS
& Contractors,Sanjay Sadan, Vaishali
Chotta Shimla, H.P.
PAN: AAKFA4648J
TAN: PTLA12835E
(Appellant) (Respondent)
Appellant by : Shri. Dinesh Sood
Respondent by : Shri. Manjit Singh
Date of hearing : 16/01/2018
Date of Pronouncement : 29/01/2018
ORDER
PER BENCH:
All the above appeals have been filed by different assessees against separate orders of the CIT(A) Shimla.
2. It was common ground between both the parties that the issue involved in all the appeals was common, pertaining to charging of fees for late filing of TDS return, under the provisions of section 234 E of the Income Tax Act 1961. The appeals were therefore heard together and are being disposed off by way of a common order.
3. Briefly stated the assessee had filed the following TDS returns late as a consequence of which while processing the TDS returns and issuing an intimation under section 200A of the Act, fee on account of the late filing of the aforementioned TDS return was charged as under:
Appeal No. TDS Return Date of Fees levied
filing TDS u/s 234E
Return
ITA No. 1399/Chd/2017 Form No. 26Q of 4th Quarter for 18/09/2013 Rs. 25,820/-
F.Y. 2012-13
Form No. 26Q of 1st Quarter for 15/10/2013 Rs. 18,310/-
F.Y. 2013-14
ITA No. 1400/Chd/2017 Form No. 26Q of 4th Quarter for 18/09/2013 Rs. 25,820/-
F.Y. 2012-13
Form No. 26Q of 1st Quarter for 15/10/2013 Rs. 18,310/-
F.Y. 2013-14
ITA No. 1401/Chd/2017 Form No. 26Q of 4th Quarter for 13/12/2013 Rs. 24,040/-
F.Y. 2012-13
ITA No. 1402/Chd/2017 Form No. 24Q of 2nd Quarter for 15/11/2013 Rs. 33,110/-
F.Y. 2012-13
Form No. 24Q of 4th Quarter for Rs. 20,000/-
F.Y. 2012-13
3
Form No. 26Q of 4th Quarter for Rs. 30,000/-
F.Y. 2012-13
ITA No. 1403/Chd/2017 Form No. 26Q of 4th Quarter for 23/10/2013 Rs. 28,050/-
F.Y. 2012-13
ITA No. 1404/Chd/2017 Form No. 26Q of 2nd Quarter for 15/04/2013 Rs. 36,400/-
F.Y. 2012-13
Form No. 26Q of 3rd Quarter for Rs. 18,000/-
F.Y. 2012-13
Form No. 26Q of 4th Quarter for Rs. 13,800/-
F.Y. 2012-13
4. The assessee went in appeal against the aforementioned intimations, to the CIT(A), who upheld the levy of fees.
5. Aggrieved by the same the assessee has come up in appeal before us challenging the action of the ld. CIT(A) in upholding the levy of fees under section 234E of the Act raising identical grounds in all the appeals as under:
"The Ld. CIT(A) has erred in law and fact of the case by upholding levy of fee under section 234E through notice under section 200A imposed by the ld. A.O."
6. During the course of hearing before us Ld. Counsel for the assessee stated that in all the impugned cases the fee had been levied prior to 01/06/2015. Ld. Counsel for the assessee stated that the Hon'ble ITAT, in number of decisions, has held that fee under section 234E was not leviable prior to 01/06/2015. Ld. Counsel for the assessee relied upon the following case laws in support of its above contention:
1. M/s Khanna Watches Ltd. Vs. DCIT (CPC)-TDS in ITA Nos. 731 to 735/Chd/2015 A.Y. 2014- 15 & 2013-14
2. Sibia Health Care Pvt. Ltd. Vs. DCIT(TDS) CPC in ITA No. 90/Asr/2015 A.Y. 2013-14
3. M/s Asian Pipes & Profiles Vs. A.O. TDS in ITA Nos. 4740 & 4741/Mum/2016 A.Y. 2013-14
4. ITO(TDS) Vs. LIC And Others in ITA Nos. 1930/1931/Del/2014 A.Y. 2010-11
5. Kash Realtors Pvt. Ltd. Vs. ITO(TDS) And Others in ITA No. 4199/M/2015 A.Y. 2013-14
7. Ld. Counsel for the assessee further stated that the decision of the Hon'ble Bombay High court in the case of Rashmikant Kundalia Vs. Union of India reported in 54 Taxman.com 200 & M/s Dundlod Shikshan Sansthan & ..... Vs. UOI & Ors. Reported in 284 CTR 175 ,which was relied upon by the CIT(A) while dismissing the assessees appeal ,were dealt with and taken into consideration by the ITAT while rendering the decision in the case of Khanna Watches (supra). Ld. Counsel for the assessee therefore stated that the issue in the present cases was squarely covered in favour of the assessee and the Ld. CIT(A) had incorrectly upheld the levy of fees in all the above cases.
48. Ld. DR on the other hand relied on the order of Ld. CIT(A) and contended that in view of the decision of the Hon'ble Bombay High Court in the case of Rashmikant Kundalia (supra) & Hon'ble High Court of Rajasthan in the case of M/s Dundlod Shikshan Sansthan (supra)the Ld. CIT(A) had rightly upheld the levy of fees u/s 234E of the Act.
9. We have heard the Ld. Representatives of both the parties and perused the case laws referred to before us.
10. The issue in the present case relates to adjustment made in the intimation of TDS return u/s 200A of the Act, on account of levy of fees as prescribed by section 234E of the Act, for late filing of TDS return. On going through the case laws relied upon by the Ld. Counsel for the assessee we find that it was held in all the said cases that fee under section 234E could be levied in an intimation made under section 200A of the Act, only post 01/06/2015 . The ITAT in the said cases, after going through the provisions of section 200A ,which deals with the processing of TDS returns, found that it was only by virtue of amendment made to the said section vide Finance Act 2015, that adjustment on account of fees u/s 234E was specifically mandated while processing TDS returns u/s 200A. It was further found that the amendment came into effect from 01-06-2015. Considering the same ,it was held that prior to 01-06-2015 no adjustment on account of fees as per section 234E could be made in the intimation under section 200A Of the Act.
11. In the present case, the facts on record reveal that the intimation u/s 200A in all the cases was dated prior to 01-06-2015 as under:
ITA No.1399/Chd/2017Intimation u/s 200A dt. 10-01-2014 &13-03-2014 ITA No.1400/Chd/2017 Intimation u/s 200A dt.10-01-2014 &13-03-2014 ITA No.1401/Chd/2017 Intimation u/s 200A dt.11-01-2014 ITA No.1402/Chd/2017 Intimation u/s 200A dt.11-01-2014 ITA No.1403/Chd/2017 Intimation u/s 200A dt.11-01-2014 ITA No.1404/Chd/2017 Intimation u/s 200A dt.06-11-2013 5
12. In view of the above facts the decision of the ITAT in the various cases as cited by the Ld. Counsel for the assessee will squarely apply, following which we hold that no interest u/s 234E is leviable and the interest so levied is therefore deleted.
13. The decisions of the Hon'ble High Court of Bombay and Rajasthan ,relied upon by the Ld. DR ,we find are on the constitutional validity of the provision of section 234E, which was upheld in the said decisions. There is no dispute vis a vis the constitutional validity of the section before us in all the cases filed. The only dispute is whether the fee could be levied in the facts and circumstances of the case ,being prior to 01/06/2015. Therefore the said decisions are of no assistance to the Revenue and merit no consideration.
14. In view of the above all the appeals filed by the assessee are allowed.
Order pronounced in the open court.
Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 29/01/2018 AG Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A)s 4. The CIT 5. The DR