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Income Tax Appellate Tribunal - Jaipur

M/S. Vimit Metals And Infrastructure P. ... vs Deputy Commissioner Of Income Tax, Cpc, ... on 26 November, 2018

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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE-A, JAIPUR

Jh fot; ikWy jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k
BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM

               vk;dj vihy la-@ITA. No. 41 & 42/JP/2018
                 fu/kZkj.k o"kZ@Assessment Years : 2015-16

M/s       Vimit      Metals      and   cuke    The DCIT,
Infrastructure Private Limited,         Vs.    Centralised Processing Cell-
C-61,       Ambabari,      Jhotwara            TDS, Ghaziabad
Road, Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: JPRV03442F
vihykFkhZ@Appellant                           izR;FkhZ@Respondent

      fu/kZkfjrh dh vksj l@
                          s Assessee by : Shri K. L. Moolchandani
       jktLo dh vksj ls@ Revenue by: Shri J. C. Kulhari (JCIT)

           lquokbZ dh rkjh[k@ Date of Hearing : 13/11/2018
        mn?kks"k.kk dh rkjh[k@Date of Pronouncement :26/11/2018

                              vkns'k@ ORDER

PER BENCH:

These are two appeals filed by the assessee against the respective orders of the ld. CIT(A)-3, Jaipur dated 20.11.2017.

2. In ITA No. 41/JP/2018, the assessee has challenged the sustenance of late filing fees of Rs. 21,800/- charged by the Assessing officer u/s 234E while processing the TDS return (24Q) u/s 200A of the Act for the F. Y 2014-15 (Qtr. 3). In ITA No. 42/JP/2018, the assessee has challenged the sustenance of late filing fees of Rs. 10,050/-

M/s Vimit Metals and Infrastructure Private Ltd., Jaipur vs. DCIT, Ghaziabad charged by AO u/s 234E while processing the TDS return (26Q) u/s 200A of the Act for the F. Y 2014-15 (Qtr. 3).

3. During the course of hearing, the ld. AR submitted that the appellant had received two computer generated intimations u/s 200A of the Act dated 11 th May, 2015, charging therein late filing fee of Rs.21,800/- & Rs.10,050/- respectively u/s 234E of the Act. It was submitted that the fee had been charged in a mechanical manner without application of mind and also without following the proper course of natural justice and equity. Further, it was submitted that the fee so charged u/s 234E of the Act is also not legally maintainable for the reason that the ld. AO was not empowered for making adjustment in respect of statement filed by the appellant with regard to tax deducted at source by levying fee u/s 234E of the Act at the given point of time. The enabling provisions of law i.e. sub-section (1) of clauses (c) to (e) of this section were inserted by The Finance Act, 2015 i.e. w.e.f. 1.6.2015 only enabling the ld. AO to make adjustment by levying fee u/s 234E of the Act. Prior to 1.6.2015, the AO was not authorized to make any adjustment by levying fee u/s 234E while processing statement of tax deducted at source u/s 200A. Thus the fee so charged was bad in law and deserved to be deleted summarily on this ground as well. It was further submitted that the point at issue had come up for interpretation at length before number of judicial authorities setting at rest the controversy. In support, reliance was placed on the decision in case of Trimurty Builcon P ltd vs DCIT (ITA No. 18, 19 & 20/JP/2017 dated 29.10.2018).

M/s Vimit Metals and Infrastructure Private Ltd., Jaipur vs. DCIT, Ghaziabad

4. In ITA No. 18, 19 & 20/JP/2017 dated 29.10.2018 in case of Trimurty Buildcon P. Ltd., Jaipur vs DCIT, Ghaziabad, we have recently dealt with an identical issue and our findings are reproduced as under:-

"7. We have heard the rival contentions and perused the material available on record. In the present case, the undisputed facts are that the assessee filed its TDS return (Form 26Q) for the fourth quarter of financial year 2012-13 on 1.10.2013 and the same was processed and intimation under section 200A was issued vide order dated 25.12.2013 much prior to the amendment to section 200A of the Act w.e.f. 1.6.2015 empowering the Assessing officer levying the fees under section 234E of the Act. It is therefore not a case of continuing default where the assessee has defaulted in furnishing the TDS statement even after 1.6.2015 and thereafter, the demand for payment of fees under section 234E has been raised by the Assessing officer. In case of Fatheraj Singhvi (supra), the Hon'ble Karnataka High Court has held that the provisions of amended section 200A are prospective in nature. Further, the decision of the Hon'ble Rajasthan High Court in case of M/s. Dundlod Shikshan Sansthan and Others (supra) as relied by ld. CIT (A) is in the context of validity of section 234E, but not in the context of power of AO for levy of fee under section 234E prior to 1.6.2015. In view of the above, the Assessing Officer while processing the TDS statements for the period prior to 01.06.2015, was not empowered to charge fees under section 234E of the Act. Hence, the demand raised by way of charging the fees under section 234E of the Act is not valid and the same is deleted."

5. We have heard the rival contentions and perused the material available on record. In the present case, the assessee filed its TDS 4 ITA No. 41 & 42/JP/2018 M/s Vimit Metals and Infrastructure Private Ltd., Jaipur vs. DCIT, Ghaziabad returns (Form 24Q & Form 26Q) for the third quarter of financial year 2014-15 which was processed and intimation under section 200A was issued vide respective intimations issued under section 200A dated 11.05.2015 much prior to the amendment to section 200A of the Act w.e.f. 01.6.2015 empowering the Assessing officer levying the fees under section 234E of the Act. Following our decision referred supra, we hereby direct the demand raised by way of charging the fees under section 234E of the Act in both the cases to be deleted.

In the result, both the appeals of the assessee are allowed.

Order pronounced in the open Court on 26/11/2018.

             Sd/-                                                       Sd/-
        ¼fot; ikWy jko½                                       ¼foØe flag ;kno½
       (Vijay Pal Rao)                                 (Vikram Singh Yadav)
U;kf;d lnL;@Judicial Member                    ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur
fnukad@Dated:- 26/11/2018
*Ganesh Kr.

vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- M/s Vimit Metals and Infrastructure Private Ltd., Jaipur

2. izR;FkhZ@ The Respondent- DCIT, Centralized Processing Cell- TDS, Ghaziabad

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr@ CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur.

6. xkMZ QkbZy@ Guard File { ITA No. 41 & 42/JP/2018} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar