Income Tax Appellate Tribunal - Agra
Sudharshan Goyal , Guna vs Dcit-Tds, Ghaziabad on 9 April, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
AGRA BENCH: AGRA
BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER, AND
DR. MITHA LAL MEENA, ACCOUNTANT MEMBER
I.T.A No. 442/Agra/2017
(ASSESSMENT YEAR-2013-14)
Sudarshan Goyal, Maya Complex, Vs.. DCIT-(TDS),
A B Road, Guna. (M.P.) Ghaziabad.
PAN No.AHNPG8822A
(Assessee)
(Revenue)
S.A. No. 01/Agra/2018
(In ITA No.442/Agra/2017)
(ASSESSMENT YEAR 2013-14)
Sudarshan Goyal, Maya Complex, Vs.. DCIT-(TDS),
A B Road, Guna. (M.P.) Ghaziabad.
PAN No.AHNPG8822A
(Assessee) (Revenue)
Assessee by Shri Ajit Madvariya, AR.
Revenue by Shri Waseem Arshad, Sr.DR.
Date of Hearing 14.03.2018
Date of Pronouncement 09.04.2018
ORDER
PER, A. D. JAIN, JUDICIAL MEMBER:
This is assessee's appeal for Assessment Year 2013-14, contending that the ld. CIT(A) has erred in confirming the imposition of late filing fee, under section I.T.A No. 442/Agra/2017 & S.A. No. 01/Agra/2018 2 234E, of an amount of Rs.25,000/-, without considering the fact that the TDS statement was filed and tax was deposited in time and there was no provision under section 200A for levy of late fee u/s 234E for the period from 1.1.2013 to 31.03.2013, whereas the order was passed on 10.11.2013.
2. The issue involved in this appeal is as to whether late filing fee u/s 234E of the IT Act has rightly been charged in the intimation dated 10.11.2013 issued u/s 200A of the Act while processing the TDS returns/statement, the enabling clause
(c) having been inserted in the section w.e.f. 01.06.2015. Before 01.06.2015, 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 statement filed for a period prior to 01.06.2015, no late fee could be levied in the intimation issued u/s 200A of the Act.
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 I.T.A No. 442/Agra/2017 & S.A. No. 01/Agra/2018 3 delivered after considering numerous ITAT/High Court decisions and so, this decision in 'Rajesh Kaurani' (supra) holds the field.
4. We do not find the view taken by the ld. CIT(A) to be correct in law. As against 'Rajesh Kaurani' (supra), 'Shri Fatehraj Singhvi 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, I.T.A No. 442/Agra/2017 & S.A. No. 01/Agra/2018 4 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 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, I.T.A No. 442/Agra/2017 & S.A. No. 01/Agra/2018 5 the grievance of the assessee is accepted as justified. The order under appeal is reversed. The levy of the fee is cancelled.
7. Since we have allowed the appeal of the assessee, the stay application of the assessee has become infrcutuous. It is dismissed as infructuous.
8. In the result, the appeal is allowed, whereas the stay application is dismissed as infructuous.
Order pronounced in the open court on 09/04/2018.
Sd/- Sd/-
(DR. MITHA LAL MEENA) (A.D. JAIN)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 09/04/2018
*AKV*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT AGRA