M/s Solaron Sustainability Services Private Limited , Bangalore v. Assistant Commissioner of Income Tax TDS CPC , Bangalore

ITA 388/BANG/2019 | 2015-2016
Pronouncement Date: 10-03-2021 | Result: Allowed

Appeal Details

RSA Number 38821114 RSA 2019
Assessee PAN AANCS6174R
Bench Bangalore
Appeal Number ITA 388/BANG/2019
Duration Of Justice 2 year(s) 6 day(s)
Appellant M/s Solaron Sustainability Services Private Limited , Bangalore
Respondent Assistant Commissioner of Income Tax TDS CPC , Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 10-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 10-03-2021
Date Of Final Hearing 10-03-2021
Next Hearing Date 10-03-2021
Last Hearing Date 11-03-2020
First Hearing Date 15-09-2020
Assessment Year 2015-2016
Appeal Filed On 04-03-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN VICE PRESIDENT AND SHRI B.R.BASKARAN ACCOUNTANT MEMBER SL. NO. ITA A.Y. PERIOD AMOUNT 1. 385/BANG/2019 2013-14 Q2 & Q4 RS.56 600 + RS.14 400 = RS.71 000 FORM 2 6 Q 2. 386/BANG/2019 2014-15 Q4 RS.16 200 F ORM 24Q 3. 387/BANG/2019 2014-15 Q1 2 & 4 RS.28 200 + RS.9 800 + RS.12 000 = RS.50 000 FORM 26Q 4. 388/BANG/2019 2015-16 Q1 TO 4 RS.16 220 + RS.48 800 + RS.30 400 + RS.6 400 = RS.1 01 820 FORM 24Q 5. 389/BANG/2019 2015-16 Q1 TO 4 RS.62 200+ RS.47 88+ RS.29 400 + 5 400 = RS.1 48 800 FORM2 6 Q 6. 390/BANG/2019 2016-17 Q1 RS.59 200 FORM2 6 Q M/S. SOLARON SUSTAINABILITY SERVICES PRIVATE LIMITED NO.158 ANUSHRI 3 RD BLOCK KORAMANGALA BENGALURU 560 034. PAN: AANCS6174R TAN: BLRS338398 VS. THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRALISED PROCESSING CELL- TDS TDS CPC AAYAKAR BHAWAN SECTOR-3 VAISHALI GHAZIABAD UTTRA PRADESH-201010 APPELLANT RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SMT.R.PREMI JCIT(DR)(ITAT) BENGALURU. DATE OF HEARING : 1 0 - 0 3 - 202 1 DATE OF PRONOUNCEMENT : 10 - 0 3 - 202 1 ITA NOS.385 TO 390/BANG/2019 PAGE 2 OF 9 2 O R D E R PER BENCH THESE ARE A BATCH OF 6 APPEALS FILED BY ASSESSEE AGAINST COMMON ORDER DATED 14.12.2018 OF CIT(APPEALS)-13 BANGALORE RELATING TO ASSESSMENT YEARS 2013-14 TO 2016-17. 2. THE ASSESSEE FILED STATEMENT OF TAX DEDUCTED AT SOURCE (TDS) FOR VARIOUS QUARTERS IN FORM NO.24Q/26Q/ FOR FY 2012-13 TO 2015-16 (AY 2013-14 TO 2016-17). THE STATEMENT WAS PROCESSED BY THE RESPONDENT. THERE WAS A DELAY IN FILING THE ABOVE TDS STATEMENT AND THEREFORE THE AO BY INTIMATION U/S. 200A OF THE INCOME-TAX ACT 1961 [THE ACT] LEVIED LATE FEE U/S. 234E OF THE INCOME-TAX ACT 1961 [THE ACT]. UNDER SEC.234E OF THE ACT IF THERE IS A DELAY IN FILING STATEMENT OF TDS WITHIN THE PRESCRIBED TIME THEN THE PERSON RESPONSIBLE FOR MAKING PAYMENT AND FILING RETURN OF TDS IS LIABLE TO PAY BY WAY OF FEE A SUM OF RS.200/- PER DAY DURING WHICH THE FAILURE CONTINUES. SECTION 234E OF THE ACT INSERTED BY THE FINANCE ACT 2012 W.E.F. 1.7.2012. READS AS FOLLOWS:- FEE FOR DEFAULT IN FURNISHING STATEMENTS. 234E. (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C HE SHALL BE LIABLE TO PAY BY WAY OF FEE A SUM OF TWO HUNDRED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE AS THE CASE MAY BE. ITA NOS.385 TO 390/BANG/2019 PAGE 3 OF 9 3 (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SUB- SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB- SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE AS THE CASE MAY BE ON OR AFTER THE 1ST DAY OF JULY 2012. 3. AGGRIEVED BY THE AFORESAID ORDERS THE ASSESSEE FILED APPEALS BEFORE THE CIT(A). THE ASSESSEES CONTENTION BEFORE CIT(A) WAS THAT THE PROVISIONS OF SECTION 234E OF THE ACT WAS INSERTED BY THE FINANCE ACT 2012 W.E.F. 1.7.2012. SECTION 200A OF THE ACT IS A PROVISION WHICH DEALS WITH HOW A RETURN OF TDS FILED U/S.200(3) OF THE ACT HAS TO BE PROCESSED AND IT READS AS FOLLOWS:- PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE . 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE OR A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200 SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLOWING MANNER NAMELY: (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT; (B) THE INTEREST IF ANY SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE FEE IF ANY SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E ; ITA NOS.385 TO 390/BANG/2019 PAGE 4 OF 9 4 (D) THE SUM PAYABLE BY OR THE AMOUNT OF REFUND DUE TO THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF THE AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST ANY AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE; (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY OR THE AMOUNT OF REFUND DUE TO HIM UNDER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR: PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION. FOR THE PURPOSES OF THIS SUB-SECTION 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHALL MEAN A CLAIM ON THE BASIS OF AN ENTRY IN THE STATEMENT (I) OF AN ITEM WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOURCE WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT. (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UNDER SUB-SECTION (1) THE BOARD MAY MAKE A SCHEME FOR CENTRALISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY OR THE REFUND DUE TO THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB-SECTION. 4. CLAUSE (C) TO (F) OF SECTION 200A(1) WAS SUBSTITUTED BY THE FINANCE ACT 2015 W.E.F. 1.6.2015. THE ASSESSEE CONTENDED THAT AO COULD LEVY FEE U/S.234E OF THE ACT WHILE PROCESSING A RETURN OF TDS FILED U/S.200(3) OF THE ACT ONLY BY VIRTUE OF THE PROVISIONS OF SEC.200A(1)(C) (D) & (F) OF THE ACT AND THOSE PROVISIONS CAME INTO FORCE ONLY FROM 1.6.2015 AND THEREFORE THE AUTHORITY ISSUING INTIMATION U/S. 200A OF THE ACT WHILE PROCESSING RETURN OF TDS FILED U/S.200(3) OF THE ACT COULD NOT LEVY FEE U/S. 234E OF THE ACT IN RESPECT OF STATEMENT OF TDS FILED PRIOR TO 1.6.2015. THE ASSESSEE THUS ITA NOS.385 TO 390/BANG/2019 PAGE 5 OF 9 5 CHALLENGED THE VALIDITY OF CHARGING OF FEE U/S. 234E OF THE ACT. THE ASSESSEE RELIED ON THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF FATEHRAJ SINGHVI V. UOI [2016] 73 TAXMANN.COM 252 WHEREIN THE HONBLE KARNATAKA HIGH COURT HELD THAT AMENDMENT MADE U/S. 200A PROVIDING THAT FEE U/S. 234E OF THE ACT COULD BE COMPUTED AT THE TIME OF PROCESSING OF RETURN AND ISSUE OF INTIMATION HAS COME INTO EFFECT ONLY FROM 1.6.2015 AND HAD ONLY PROSPECTIVE EFFECT AND THEREFORE NO COMPUTATION OF FEE U/S.234E OF THE ACT FOR DELAYED FILING OF RETURN OF TDS WHILE PROCESSING A RETURN OF TDS U/S.234E OF THE ACT COULD HAVE BEEN MADE FOR TAX DEDUCTED AT SOURCE FOR THE ASSESSMENT YEARS PRIOR TO 1.6.2015. 5. THE CIT(APPEALS) FOUND THAT THE APPEALS WERE FILED BY THE ASSESSEE ON 10.4.2017 AND WERE FILED BELATED AND THERE WAS APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEALS. THE ASSESSEE CLAIMED BEFORE CIT(A) THAT THE CONTROVERSY REGARDING LEVY OF INTEREST U/S.234-E OF THE ACT WAS NOT CLEAR AND CLARITY EMERGED ONLY AFTER THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI (SUPRA) AND THAT THE ASSESSEE UNDER THE BONAFIDE IMPRESSION THAT LEVY OF FEE U/S.234E OF THE ACT IS NOT APPELLABLE AND WERE ADVISED NOT TO FILE ANY APPEAL AGAINST THE LEVY OF FEE U/S.234E OF THE ACT. THE ASSESSEE SUBMITTED THAT IT WAS OWING TO A WRONG APPRECIATION OF LAW THAT THE APPEAL WAS NOT FILED WITHIN TIME AND THAT A LIBERAL VIEW HAS TO BE TAKEN IN THE MATTER OF CONDONATION OF DELAY. THE ASSESSEE RELIED ON A DECISION OF ITAT AHMEDABAD IN THE CASE OF M/S.BANNER INTERNATIONAL SURAT VS. ACIT SURAT IN ITA NO.1829 TO 1831/AHD./2010 WHEREIN IT WAS HELD THAT A SUBSEQUENT DECISION BY THE SPECIAL BENCH OF THE TRIBUNAL WHICH ENLIGHTENED THE ASSESSEE TO PREFER APPEAL BEFORE APPELLATE AUTHORITY FOR JUSTICE THE DELAY IN APPEAL WAS CONDONED AS REASONABLE AND JUSTIFIABLE. 6. THE CIT(A) FOUND THAT THERE WAS INORDINATE DELAY IN FILING THE APPEALS AND THOSE DETAILS HAVE BEEN SET OUT IN THE ORDER OF CIT(A) AS FOLLOWS: ITA NOS.385 TO 390/BANG/2019 PAGE 6 OF 9 6 7. THE CIT(A) FIRSTLY OBSERVED THAT AS PER THE DECISION RENDERED IN THE CASE OF FATHERAJ SINGHVI (SUPRA) BY THE HONBLE KARNATAKA HIGH COURT THE HONBLE COURT HAS OBSERVED THAT IF A TAX DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED U/S.200A OF THE ACT HE CANNOT TAKE ADVANTAGE OF THE DECISION AND SEEK REFUND. THE CIT(A) NOTICED THAT THE INTIMATIONS U/S.200A FOR LEVY OF LATE FEE U/S.234E OF THE ACT WERE ISSUED ON THE ASSESSEE ON 14.11.2013 14.3.2014 15.02.2014 7.8.2014 19.6.2015 14.6.2015 AND 10.5.2016 RESPECTIVELY. HE ALSO OBSERVED THAT THE ASSESSEE HAS NOT PAID THE DEMAND FOR ITA NOS.385 TO 390/BANG/2019 PAGE 7 OF 9 7 LATE FEE AS PER THE AFORESAID INTIMATIONS. HE OBSERVED THAT THE ASSESSEE STILL CANNOT TAKE BENEFIT OF THE DECISION OF HONBLE KARNATAKA HIGH COURT BECAUSE HE HAS DEFIED THE PROVISIONS OF LAW. THIS REASON GIVEN BY CIT(A) IS UNSUSTAINABLE BECAUSE THE HONBLE HIGH COURT IN ITS JUDGMENT ONLY HELD THAT THOSE ASSESSEES WHO HAVE ALREADY PAID LATE FEE U/S.234E OF THE ACT CANNOT SEEK REFUND BASED ON ITS JUDGMENT. SINCE THE ASSESSEE HAS NOT PAID THE LATE FEE HE IS NOT PRECLUDED BY THE JUDGMENT OF THE COURT FROM CHALLENGING THE LEVY OF LATE FEE U/S/234E OF THE ACT. 8. THE CIT(A) THEREAFTER REFUSED TO CONDONE THE DELAY IN FILING APPEALS AND DISMISSED ALL THE APPEALS. THE CIT(A) WAS OF THE VIEW THAT THERE WAS A DIFFERENCE BETWEEN MARGINAL DELAY AND INORDINATE DELAY AND MADE REFERENCE TO A DECISION OF ITAT HYDERABAD BENCH IN THE CASE OF T. KRISHNA VS. ACIT(IT(SS)A.NO.23 & 25/HYD/2011) AND HELD THAT THE ASSESSEE SHOULD EXPLAIN THE DELAY AS ONE THAT OCCURRED DUE TO CIRCUMSTANCES BEYOND HIS CONTROL. 9. AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSEE HAS PREFERRED APPEALS BEFORE THE TRIBUNAL. NONE APPEARED FOR THE ASSESSEE. THE LEARNED DR REITERATED THE STAND OF THE REVENUE AS REFLECTED IN THE ORDER OF THE CIT(A). 10. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED DR AND ALSO THE GROUNDS OF APPEAL FILED BY THE ASSESSEE. IT IS NOT IN DISPUTE THAT IF THE RATIO LAID DOWN BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF FATEERAJ SINGHVI (SUPRA) IS APPLIED THEN THE LEVY OF INTEREST U/S.234-E OF THE ACT WOULD BE ILLEGAL FOR RETURNS OF TDS IN RESPECT OF THE PERIOD PRIOR TO 1.6.2015. THE PRESENT APPEALS OF THE ASSESSEE RELATE TO TDS RETURNS FILED PRIOR TO 1.6.2015. THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF FATEERAJ SINGHVI (SUPRA) WAS RENDERED ON 26.8.2016. IT HAS BEEN HELD BY THE ITAT HYDERABAD BENCH IN THE CASE OF MSV IT SOLUTIONS LTD. VS. ITO WARD 16(4) ITA NOS. 177 & ITA NOS.385 TO 390/BANG/2019 PAGE 8 OF 9 8 178/HYD/2018 ORDER DATED 26.10.2018 WHEREIN ON IDENTICAL FACTS NOTICING THAT THERE WAS NO LEGAL REMEDY PRIOR TO 1.6.2015 AGAINST AN INTIMATION U/S.200A OF THE ACT THE HYDERABAD BENCH CONDONED DELAY IN FILING APPEAL BEFORE CIT(A). THE ASSESSEE IS NOT GUILTY OF NEGLIGENCE AND THE DELAY WAS DUE TO BONAFIDE REASONS SET OUT ABOVE. THE ASSESSEE AND AS PER THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR OF LAND ACQUISITION VS. MST. KATIJI & OTHERS AIR 1987 1353 (SC) DELAY SHOULD BE CONDONED WHERE THERE IS NO NEGLIGENCE. THE HONBLE APEX COURT HAS EMPHASIZED THAT SUBSTANTIAL JUSTICE SHOULD PREVAIL OVER TECHNICAL CONSIDERATIONS. THE COURT HAS ALSO EXPLAINED THAT A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING THE APPEAL LATE. THE COURT HAS ALSO EXPLAINED THAT EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE TAKEN. THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE AND PRAGMATIC MANNER. THE ITAT HYDERABAD BENCH IN THE CASE OF MSV IT SOLUTIONS LTD. VS. ITO WARD 16(4) ITA NOS. 177 & 178/HYD/2018 ORDER DATED 26.10.2018 WHEREIN ON IDENTICAL FACTS NOTICING THAT THERE WAS NO LEGAL REMEDY PRIOR TO 1.6.2015 AGAINST AN INTIMATION U/S.200A OF THE ACT THE HYDERABAD BENCH CONDONED DELAY IN FILING APPEAL BEFORE CIT(A). 11. CONSIDERING THE REASONS GIVEN BY THE ASSESSEE FOR CONDONATION OF DELAY AND KEEPING IN MIND THAT TECHNICALITIES SHOULD NOT STAND IN THE WAY OF RENDERING SUBSTANTIVE JUSTICE WE ARE OF THE VIEW THAT THE DELAY IN FILING THE APPEALS DESERVES TO BE CONDONED. ACCORDINGLY THE DELAY IS CONDONED. SINCE THE CIT(A) HAS NOT DECIDED THE ISSUE ON MERITS THE ORDER OF THE CIT(A) IS SET ASIDE AND REMANDED TO THE CIT(A) WITH A DIRECTION TO DECIDE THE APPEALS OF THE ASSESSEE ON MERITS IN ACCORDANCE WITH LAW WITH DUE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. ITA NOS.385 TO 390/BANG/2019 PAGE 9 OF 9 9 12. IN THE RESULT ALL THE APPEALS BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- BANGALORE DATED: 10.03.2021. /NS/* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT BANGALORE. ( B. R. BASKARAN ) (N. V. VASUDEVAN) ACCOUNTANT MEMBER VICE PRESIDENT