Income Tax Appellate Tribunal - Agra
Bharti Buildcon , Gwalior vs Ito Tds, Gwalior on 11 July, 2018
IN THE INCOME-TAX APPELLATE TRIBUNAL,
AGRA BENCH, AGRA
Before: Shri A.D. Jain, Judicial Member And
Shri Dr. Mitha Lal Meena, Accountant
Member
S.N ITA No. Appellant Respondent PAN/TAN
o.
1-2 414- M/s Yasoda Grah ITO (TDS), City AAATY 2760 R
415/Agr/2018 Nirman Sahkari Center, Gwalior BPLY00265G
A.Y.2013-14 Sanstha Maryadit,
Gwalior
3-4. 474-475 /Agr Engineer's Circle ITO (TDS), City AACCE 7022 K
/2018 Education Private Ltd., Center, Gwalior BPLE00988B
A.Y.2013-14 1-27, Site No.1, City
to 2014-15 Center, Gwalior (M.P.)
5 to 478- 488/ M/s Bharti ITO (TDS), City AAKFB 8078 M
15 Agr/2018 Buildcon, C-3, Center, Gwalior BPLB04301D
AYs 2013-14 Govindpuri,
to 2015-16
Thatipur, Gwalior
(M.P.)
16 489 - 499 / M/s Rajkumar Singh ITO (TDS), City AAGFR 2143 F
to Agr/ 2018 Chauhan Contractor Center, Gwalior BPLR03259E
26 AY 2014-15 to Kamal Singh Ka bagh,
2015-16 Shinde Ki Chhawani,
Lashkar, Gwalior (M.P.)
27 500- 507 / S.R.S. Vizcon Pvt. Ltd., ITO (TDS), City AARCS2090Q
to Agra / 2018 Gwalior Center, Gwalior BPLS1427F
34 AY 2014-15 to
2015-16
35 508-513/ Agr Smt. Pragya Sharma, ITO (TDS), City CPXPS1857R
to /2018 E-25, New Center, Gwalior BPLP05173A
40 A.Y.2013-14 vivekanand Colony,
to 2015-16 Near Balwant Nagar,
Thatipur, Gwalior
(M.P.)
41 514-518 /Agr / M/s Rama Shankar ITO (TDS), City BIWPD 9383 G
to 2018 Dixit, 67, Indra nagar, Center, Gwalior BPLR06172F
45 A.Y.2013-14 Thatipur, Gwalior
to 2015-16
46- 519-520/Agr / S.R.S. Thermax, ITO (TDS), City AASCS9672H
47 2018 610, Millenium Center, Gwalior BPLS14681C
A.Y 2015-16 Plaza, Govindpur,
Gwalior
48- 521-522/Agr / Sh. Ram Niwas ITO (TDS), City ARQPS5740J
49 2018 Sharma, E-25, New Center, Gwalior BPLR05403G
A.Y 2013-14 Vivekanand
to 2014-2015
Colony, Near
Balwant Nagar,
Thatipur, Gwalior
ITA Nos.414 & 415/A/2018
& Anr. Connected appeals 2
50- 523-525/Agr / M/s Singh & Singh ITO (TDS), City ABGFS2481J
52 2018 Construction,305, Center, Gwalior BPLS10401G
A.Y 2013-14 Sindhiya Enclave,
to 2014-2015
Darpan Colony,
Thatipur, Gwalior
53- 526-527/ Agr / S.R.S. Villas ITO (TDS), City AATCS7872G
54 2018 Luxury Hotel Pvt. Center, Gwalior BPLS15575A
A.Y 2015-16 Ltd., Infront of
Akashwani
Campus, Mela
Road, Satyadev
Nagar, Gandhi
Road, Thatipur,
Gwalior
55- 528-538/ Agr / M/s Durga ITO (TDS), City AADFD 6314 P
65 2018 Associates, H-30, Center, Gwalior BPLD02323G
A.Y 2013-14 Govindpuri,
to 2015-16
Thatipur, Gwalior
66- 539-549/ Agr / M/s Sh. Ram Sharma ITO (TDS), City ABKFS 7938 Q
76 2018 Stone Crusher, A-1, Center, Gwalior BPLS09447E
A.Y 2013-14 New Vivekanand
to 2015-16 Colony, University
Road, Thatipur,
Gwalior
77- 551-553/ Agr / M/s Govind ITO (TDS), City AAGFG6788B
79 2018 Construction Co., Center, Gwalior BPLG03702G
A.Y 2013-14 337, Jiwaji Nagar,
Gwalior
80- 554-563/ Agr / M/s Jai Bajrang ITO (TDS), City AAFFJ6368M
89 2018 Wali Construction, Center, Gwalior BPLJ01703C
A.Y 2013-14 MIG-25 Darpan
to 2015-16
Colony, Thatipur,
Gwalior
90- 564-573/ Agr / M/s Achal ITO (TDS), City AAPFA 9433 N
99 2018 Associates, 28- Center, Gwalior BPLA04660F
A.Y 2013-14 Arjun Nagar, Near
to 2015-16
Balwant Nagar,
Gandhi Road,
Thatipur, Gwalior
100- 574-580/ Agr / M/s Jagannath ITO (TDS), City AHGPP8688L
106 2018 Construction Co., Center, Gwalior BPLG05722G
A.Y 2014-15 C - 34, Bhagat
to 2015-16
Singh Nagar, Bhind
Road, Gwalior
ITA Nos.414 & 415/A/2018
& Anr. Connected appeals 3
107- 581-588/ Agr / Girraj Singh ITO (TDS), City AHGPP8688L
114 2018 Parmar, Panchvati Center, Gwalior BPLG05725G
A.Y 2014-15 Colony, A.B. Road,
to 2015-16
Bahodapur,
Gwalior
Appellant by Shri Deependra Mohan, CA in ITA No. 414-415 /Agr/ 2018
Shri K.C. Agarwal, Advocate in ITA No.474-475/Agr/2018
Shri Satish Chobey in another appeals
Respondent by Shri Waseem Arshad, Sr. DR
Date of Hearing 10.07.2018
Date of Pronouncement 11.07.2018
ORDER
PER BENCH:
This bunch of appeals is directed against the orders of the ld. CIT(A), Agra, upholding levy of fee u/s 234E of the Income Tax Act, 1961(hereinafter, for short, 'the Act').
2. Since a common issue is involved in all these appeals, they are being disposed of by this consolidated order, for the sake of convenience.
3. Briefly, the facts are that late fees have been levied by the AO u/s 234E of the Act. The ld. CIT(A) has confirmed the same, relying on the decision in the case of 'Rajesh Kaurani vs. Union of India', 83 Taxmann.com 137(Guj).
ITA Nos.414 & 415/A/2018 & Anr. Connected appeals 4
4. Thus, the issue involved in all these appeals is as to whether late filing fee u/s 234E of the Act has rightly been charged in the intimation issued u/s 200A/206CB of the Act while processing the TDS returns/statements, the enabling clause (c) having been inserted in Section 200A w.e.f. 01.06.2015. Earlier, there was no enabling provision in the Act u/s 200A for raising demand in respect of levy of fee u/s 234E. As such, as per the assessee, in respect of TDS statements filed for a period up to 31.03.2015, no late fee could be levied in the intimation issued u/s 200A of the Act.
5. On similar facts, we have decided this issue in the case of 'Sudershan Goyal vs. DCIT (TDS)', in ITA No. 442/Agra/2017, vide order dated 09.04.2018. The relevant part of the said order is reproduced as follows:
"3. Heard. The ld. CIT(A), while deciding the matter against the assessee, has placed reliance on 'Rajesh Kaurani vs. UOI', 83 Taxmann.com 137 (Guj), wherein, it has been held that section 200A of the Act is a machinery provision providing the mechanism for processing a statement of deduction of tax at source and for making adjustments. The ld. CIT(A) has held that this decision was delivered after considering numerous ITAT/High Court decisions and so, this decision in 'Rajesh Kaurani' (supra) holds the field.
ITA Nos.414 & 415/A/2018 & Anr. Connected appeals 5
4. We do not find the view taken by the ld. CIT(A) to be correct in law. As against 'Rajesh Kaurani' (supra), 'Shri FatehrajSinghvi and Others vs.UOI', 73 Taxmann.com 252 (Ker), as also admitted by the ld. CIT(A) himself, decides the issue in favour of the assessee. The only objection of the ld.
CIT(A) is that this decision and others to the same effect have been taken into consideration by the Hon'ble Gujarat High Court while passing 'Rajesh Kaurani' (supra). However, while observing so, the ld. CIT(A) has failed to take into consideration the settled law that where there is a cleavage of opinion between different High Courts on an issue, the one in favour of the assessee needs to be followed. It has so been held by the Hon'ble Supreme Court in 'CIT vs. Vegetable Products Ltd.', 88 ITR 192 (SC). It is also not a case where the decision against the assessee has been rendered by the Jurisdictional High Court qua the assessee.
5. In 'Shri Fatehraj Singhvi and Others' (supra) it has been held, inter alia, as follows:
"22. It is hardly required to be stated that, as per the well established principles of interpretation of statute, unless it is expressly provided or impliedly demonstrated, any provision of statute is to be read as having prospective effect and not retrospective effect. Under the circumstances, we find that substitution made by clause (c) to (f) of sub-section (1) of Section 200A can be read as having prospective effect and not having retroactive character or effect. Resultantly, the demand under Section 200A for computation and intimation for the payment of fee under Section 234E could not be made in purported exercise of power under Section 200A by the respondent for the period of the respective assessment year prior to 1.6.2015.
However, we make it clear that, if any deductor has already paid the fee after intimation received under ITA Nos.414 & 415/A/2018 & Anr. Connected appeals 6 Section 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest."
6. In view of the above, respectfully following 'Shri Fatehraj Singhvi and Others' (supra), 'Sibia Healthcare Pvt. Ltd. vs. DCIT (TDS)', order dated 09.06.2015 passed in ITA No.90/ASR/2015, for A.Y.2013-14, by the Amritsar Bench of the Tribunal, and 'Shri Kaur Chand Jain vs. DCIT, CPC (TDS) Ghaziabad', order dated 15.09.2016, in ITA No.378/ASR/2015, for A.Y. 2012-13, the grievance of the assessee is accepted as justified. The order under appeal is reversed. The levy of the fee is cancelled."
6. In the above view, respectfully following 'Shri FatehrajSinghvi and Ors' (Supra), and our own findings in the case of 'Sudershan Goyal' (Supra), we accept the grievance of the assessees as genuine. Accordingly, the orders of the CIT(A) are reversed and the fee so levied under section 234E of the Act is cancelled.
7. In the result, all the appeals are allowed.
(Order pronounced in the open court on 11.07.2018) Sd/- Sd/-
(Dr.Mitha Lal Meena) (A.D. Jain)
Accountant Member Judicial Member
Dated 11/07/2018
Aks/-DOC
ITA Nos.414 & 415/A/2018
& Anr. Connected appeals 7
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITA Nos.414 & 415/A/2018
& Anr. Connected appeals 8
Date
1. Draft dictated (DNS) 10.07.2018 PS
2. Draft placed before author 11.07.2018 PS
3. Draft proposed & placed before the second member JM/AM
4. Draft discussed/approved by Second Member. JM/AM
5. Approved Draft comes to the Sr.PS/PS PS/PS
6. Kept for pronouncement on PS
7. File sent to the Bench Clerk PS
8. Date on which file goes to the AR
9. Date on which file goes to the Head Clerk.
10. Date of dispatch of Order.