Sh Vijay Kumar Gupta, Jalandhar v. The Dy Commissioner of Income Tax, Ghaziabad

ITA 390/ASR/2016 | 2013-2014
Pronouncement Date: 28-10-2016 | Result: Allowed

Appeal Details

RSA Number 39020914 RSA 2016
Assessee PAN AADFR0918H
Bench Amritsar
Appeal Number ITA 390/ASR/2016
Duration Of Justice 3 month(s) 17 day(s)
Appellant Sh Vijay Kumar Gupta, Jalandhar
Respondent The Dy Commissioner of Income Tax, Ghaziabad
Appeal Type Income Tax Appeal
Pronouncement Date 28-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 28-10-2016
Assessment Year 2013-2014
Appeal Filed On 11-07-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY JUDICIAL MEMBER I.T.A. NOS.386 & 387(ASR)/2016 ASSESSMENT YEAR: 2013-14 I.T.A. NO.388(ASR)/2016 ASSESSMENT YEAR: 2014-15 M/S. ORTHONOVA JOINT & TRAUMA HOSPITAL PVT. LTD. NAKODAR ROAD NEAR NARI NIKETAN JALANDHAR. PAN:AABC00966F VS. DY. CIT CPC-TDS GHAZIABAD. (APPELLANT) (RESPONDENT) I.T.A. NO.389(ASR)/2016 ASSESSMENT YEAR: 2014-15 M/S. R.M. SALES CORPORATION 72-73 GULAB SINGH NAGAR BEHIND INDUSTRIAL AREA JALANDHAR. PAN:AADFR0918H VS. DY. CIT CPC-TDS GHAZIABAD. (APPELLANT) (RESPONDENT) I.T.A. NO.390(ASR)/2016 ASSESSMENT YEAR: 2013-14 SH. VIJAY KUMAR GUPTA PROP. MANMOHAN METAL CORPORATION SAINI COLONY JALANDHAR. PAN:AAQPG6088A VS. DY. CIT CPC-TDS GHAZIABAD. (APPELLANT) (RESPONDENT) I.T.A. NO.391(ASR)/2016 ASSESSMENT YEAR: 2014-15 M/S. GUPTA SPORTS CO. BASTI NAU JALANDHAR. PAN:AAAFG6349N VS. DY. CIT CPC-TDS GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. SURINDER MAHAJAN (CA) RESPONDENT BY: SH. RAHUL DHAWAN (DR) ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 2 DATE OF HEARING: 20.09.2016 DATE OF PRONOU NCEMENT:28.10.2016 ORDER PER N. K. CHOUDHRY (JM): THE INSTANT APPEALS HAVE BEEN FILED BY THE DIFFEREN T ASSESSEES ON AGGRIEVED AGAINST THE CONSOLIDATED ORDER DATED 27.0 6.2016 PASSED BY THE LD. CIT(A) 1 JALANDHAR FOR ASST. YEARS:2013-14 & 2 014-15. 2. THE SIMILAR GROUNDS OF APPEALS HAVE BEEN TAKEN B Y THE DIFFERENT ASSESSEES IN ALL THESE APPEALS EXCEPT VARIATION IN AMOUNTS THEREFORE GROUNDS OF ITA NO.386(ASR)/2016 HAVE BEEN TAKEN TO DECIDE. 1. (A) THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A)-1 JALANDHAR HAS GROSSLY ERRED IN LA W IN REFUSING TO CONDONE DELAY IN FILING APPEAL. (B) THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A)-I JALANDHAR HAS GROSSLY ERRED IN LAW IN CON CLUDING THAT NO SUFFICIENT CAUSE FOR DELAY IN FILING APPEAL HAS BEE N ESTABLISHED BY THE ASSESSEE. CONCLUSION DRAWN BY THE LEARNED CIT(A ) IS ILLEGAL AND BAD IN LAW. (C) THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A)-I JALANDHAR HAS GROSSLY ERRED IN LAW IN CON CLUDING THAT ONLINE FILING OF TDS RETURNS AND ONLINE INTIMATION THOUGH A NEW CONCEPT IS NOT RELEVANT FOR THE DELAY CAUSED IN FIL ING OF APPEAL. CONCLUSION DRAWN IS ILLEGAL AND BAD IN LAW. 2. THAT THE LD. ASSESSING OFFICER (TDS-CPC) HAS GROSSLY ERRED IN LAW IN LEVYING LATE FEES OF RS45200/- AND RAISING D EMAND OF RS. 45200/- IN THE INTIMATION U/S 200A OF THE ACT. THER E IS NO ENABLING PROVISION IN THE ACT FOR RAISING A DEMAND IN RESPEC T OF LEVY OF FEES UNDER SECTION 234E VIDE INTIMATION U/S 200A UPTO 30 .06.2015. 3. THAT LEVY OF PENALTY IS NOT IN ACCORDANCE WI TH SECTION 234E OF THE ACT SINCE SUB SECTION (3) OF THE SECTION 234E O F THE ACT STATES THAT IT SHALL BE PAID BEFORE DELIVERING A TDS STATEMENT. ONCE THE TDS STATEMENT HAS BEEN ACCEPTED WITHOUT LATE FEES AND T HEN SUCH LATE FEE CANNOT BE RECOVERED LATER ON. ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 3 4. THAT LATE FEE OF RS.45200/- IMPOSED IS BAD IN LAW SINCE THERE WAS A REASONABLE CAUSE FOR DELAY IN FILING THE STAT EMENT. 5. THAT DEMAND HAS BEEN CREATED WITHOUT GIVING OP PORTUNITY OF BEING HEARD WHICH MAKES THE DEMAND CREATED BAD IN L AW BEING AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3. THE AMOUNTS OF LATE FEES IN ALL THE CASES ARE DI FFERENT AND FOR THE SAKE OF CLARITY AND BREVITY DETAILS ARE REPRODUCED HEREIN BELOW. APPEALS ASST. YEAR ASSESSEES NAME DELAY OF FILING FEES AMOUNT ITANO.386(ASR) 2016 2013-14 M/S. ORTHONOVA JOINT & TRAUMA HOSPITAL PVT. LTD. 226 DAYS 45 200/- ITANO.387(ASR) 2016 2013-14 M/S. ORTHONOVA JOINT & TRAUMA HOSPITAL PVT. LTD. 226 DAYS 45 200/- ITANO.388(ASR) 2016 2014-15 M/S. ORTHONOVA JOINT & TRAUMA HOSPITAL PVT. LTD. 184 DAYS 16 335/- ITANO.389(ASR) 2016 2014-15 M/S. R.M.SALES CORPORATION 152 DAYS 15 875/- ITANO.390(ASR) 2016 2013-14 SH. VIJAY KUMAR GUPTA 121 DAYS 21 860/- ITANO.391(ASR) 2016 2014-15 M/S. GUPTA SPORTS CO. 211 DAYS 33 543/- 4. THE ISSUES ARE SIMILAR IN ALL THESE APPEALS THE REFORE FOR THE SAKE OF CONVENIENCE ALL THE APPEALS CAN BE PASSED BY A COMMON AND CONSOLIDATED ORDER. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE DEDU CTOR HAD FILED ITS TDS QUARTERLY STATEMENT OF FORM 24Q OF QUARTER 4 OF F.Y .2012-13 ON 27.L2.2013 WHICH WAS DUE TO BE FILED ON 15.05.2013. THERE WAS DELAY OF 226 DAYS IN FILING OF STATEMENT. THE LD. ASSESSING OFFICER (TDSCPC) HAD IMPOSED A LATE FEES U/S 234E FOR 226 DAYS OF RS.45 200/-FOR DELAY IN FILING OF QUARTERLY TDS STATEMENT. ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 4 5.1. PRIOR TO AMENDMENT BY WAY OF FINANCE ACT 2 015 WITH EFFECT FROM 1 ST JUNE 2015 THERE WAS NO CLAUSE TO COVER LATE FEE T O BE CHARGED U/S 234E OF THE ACT. THERE WAS NO ENABLING PROVISION IN SECTION 200A FOR RAISING A DEMAND IN RESPECT OF LEV Y OF FEE U/S 234E OF THE ACT. AGGRIEVED WITH THE INTIMATION U/S 200A WHEREIN FEE U/S 234E HAS BEEN CHARGED. 5.2 THAT ASSESSEE FILED APPEAL BEFORE LD. CIT(A) ALONGWITH APPLICATION OF CONDOLATION OF DELAY OF 451 DAYS IN FILING OF APPEAL WHEREIN IT HAS BEEN SUBMITTED THAT ASSESSEE WAS UND ER BONAFIDE BELIEF THAT NO APPEAL LIES AGAINST INTIMATION U/S 2 00A OF THE ACT AND ASSESSEE WAS OF THE BELIEF THAT BASED ON INTIMA TION THE ASSESSING OFFICER WILL PASS ORDER U/S 201 OF THE AC T AND APPEAL WILL BE FILED WITHIN 30 DAYS OF RECEIPT OF ORDER. IT WAS ONLY FEW DAYS BACK PRIOR TO FILING OF THE APPEAL ON CONTACTING M /S SURINDER MAHAJAN & ASSOCIATES ASSESSEE CAME TO KNOW THAT NO ORDER IS TO BE PASSED ON THE BASIS OF INTIMATION SENT BY THE CP C. 5.3 THAT LD. CIT(A)-I JALANDHAR VIDE HIS ORDER DATED 27.06.2016 HAS DISMISSED THE APPEAL FOR LATE FILING OF APPEAL BY 451 DAYS BY HOLDING THAT THERE WAS NO SUFFICIENT CAUSE BEHIND L ATE FILING OF APPEAL. 6. BEING AGGRIEVED BY THE ORDER PASSED BY THE LD. CIT(A)-1 JALAHANDHAR THE ASSESSEES PREFERRED THE INSTANT AP PEALS WHICH ARE UNDER CONSIDERATION NOW. ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 5 7. AT THE OUTSET IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE IN RESPECT OF GROUND NO.1 THAT THE LD. ASSESSING OFFICER (TDS-CPS) HAS GROSSLY ERRED IN LAW IN LEVYING LATE FEES OF RS.15 875/- AND RAISING DEMAND OF RS.15 875/- IN THE INTIMATION U/S 200A OF THE ACT. THERE IS NO ENABLING PROVISION IN THE ACT FOR RAISING A DEMA ND IN RESPECT OF LEVY OF FEES UNDER SECTION 234E VIDE INTIMATION U/S 200A UP TO 30.06.2015. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE ARG UMENT AND GROUNDS TAKEN BEFORE THE LD. CIT(A) AND ALSO RELIED UPON THE SAME JUDGMENTS WHICH WERE SUBMITTED BEFORE THE LD. CIT(A ) AS WELL AS BEFORE THIS COURT ALSO. THE ASSESSEE FILED THE WRITTEN SUB MISSIONS GROUND WISE WHICH REPRODUCED AS UNDER: 1. GROUND OF APPEAL NO.1 THAT THE LD. ASSESSING OFFICER (TDS-CPC) HAS GROSSL Y ERRED IN LAW IN LEVYING LATE FEES OF RS.45 200/- AND RAISING DEMAND OF RS.45 200/- IN THE INTIMATION U/S 200A OF THE ACT. THERE IS NO ENABLING PROVISION IN THE ACT FOR RAISING A DEMAND IN RESPEC T OF LEVY OF FEES UNDER SECTION 234E VIDE INTIMATION U/S 200A UPTO 30 .06.2015. OUR SUBMISSIONS: 1. THAT AT THE OUTSET YOUR HONOURS KIND ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 200A OF THE ACT PRIOR TO ITS AMENDMENT EFFECTED FROM JUNE 1 2015. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE 63A [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 CO MPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS NAMELY : (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM APPARENT FROM ANY INFORMAT ION IN THE STATEMENT; B) THE INTEREST IF ANY SHALL BE COMPUTED ON THE BAS IS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; C) THE SUM PAYABLE BY OR THE AMOUNT OF REFUND DUE TO THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMPUTED UNDE R CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND SECTION 201 AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 6 D) AN INTIMATION SHALL BE PREPARED OR GENERATED AND S ENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY OR THE AMOUNT OF REFUND DUE TO HIM UNDER CLAUSE (C); AND E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUA NCE OF THE DETERMINATION UNDER CLAUSE (C) 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 W HICH 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 ANOTHE R ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOUR CE WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT. (2). FOR THE PURPOSES OF PROCESSING OF STATEME NTS UNDER SUB-SECTION (1) THE BOARD MAY MAKE A SCHEME 64 FOR CENTRALISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE T AX PAYABLE BY OR THE REFUND DUE TO THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB -SECTION.] FROM THE SECTION STATED ABOVE IT IS CLEAR THAT ACT DOES NOT COVER THE PROCEEDINGS OF TDS QUARTERLY STATEMENT FOR THE LEVY OF LATE FEES U/S 234E. HOWEVER FINANCE BILL 2015 AMENDED SE 200A RELATING TO PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE. THE EXISTING PROVISION CONTAINED IN SUB SECTION (1) OF THE AFORESAID SECTION PROVIDE TH AT STATEMENT OF TAX DEDUCTION AT SOURCE OR A CORRECTION STATEMENT MADE UNDER SECTION 200 SHALL BE PROCESSED IN THE MANNER SPECIFIED THEREIN. IT IS PROPOSED TO AMEND SUB SECTION (1) OF THE SAID SECTION TO PROVID E THE STATEMENT OF TAX DEDUCTION AT SOURCE OR CORRECTION STATEMENT MADE UN DER SECTION 200 SHALL BE PROCESSED AND SUM DEDUCTIBLE UNDER CHAPTER XVII SHALL BE COMPUTED AFTER ALSO TAKING INTO ACCOUNT THE FEE IF ANY PAYABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E. THE SUM PAYABLE OR REFUNDABLE SHALL BE DETERMINED AFTER ADJUSTING THE AFORESAID COMPUTED SUM AGAINST ANY AMOUNT PAID UNDER SECTION 200 OR SE CTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY O F TAX OR INTEREST OR FEE. THIS AMENDMENT WILL TAKE EFFECT FROM 1 ST JUNE 2015. THUS FROM THE ABOVE IT IS CLEAR THAT GOVERNMENT HAS BEEN EMP OWERED I.E. FROM 01.06.2015 TO PASS ORDER U/S 200A FOR THE LATE FEES U/S 234 E & THUS IT IS CLEAR THAT ORDER PASSED BEFORE 01.06.2015 ARE WRONG UNLAWFUL AND LIABLE TO BE QUASHED BECAUSE GOVERNMENT HAD NO POWER TO PROCESS TDS RETURN U/S 200A FOR D EMANDING LATE FEE U/S 234E. (2) THAT AS IS CLEAR FROM A PLAIN READING OF SECTION 20 0A THAT THERE IS NO ENABLING PROVISIONS FOR RAISING A DEMAND IN RESP ECT OF LEVY OF FEES U/S 234E OF THE ACT. THE LIMITED MANDATE UNDER SECTION 200A OF THE ACT (PRIOR TO ITS AMENDMENT EFFECTIVE FROM JUNE 1 2015 ) WAS TO PERMIT COMPUTATION OF AMOUNT RECOVERABLE FROM OR PAYABLE T O THE TAX DEDUCTED AFTER MAKING ADJUSTMENT ON ACCOUNT OF ARITHMETICAL ERRORS AND INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN T HE STATEMENT. (3) THAT ADJUSTMENT IN RESPECT OF LEVY OF FEES U/S 234 E OF THE ACT IS BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENT CONTEMPL ATED UNDER SECTION ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 7 200A OF THE ACT (AS IT STOOD PRIOR TO ITS AMENDMENT EFFECTED FROM JUNE 1 2015. (4) THAT PRIOR TO JUNE 1 2015 THERE WAS NO OTHER PROVI SION ENABLING A DEMAND IN RESPECT OF LEVY U/S 234E OF THE ACT IN TH E ABSENCE OF THE ENABLING PROVISIONS U/S 200A OF THE ACT NO LEVY U/ S 234E OF THE ACT CAN BE EFFECTED. YOUR HONOUR ATTENTION IS INVITED TO TH E JUDGMENT GIVEN BY HONOURABLE AMRITSAR TRIBUNAL IN THE CASE OF SIBIA HEALTH CARE PVT. LTD. VS. DCIT WHEREIN THE HONOURABLE AMRITSAR BENCH HAS HELD THAT LEVY U/S 234E OF THE ACT CANNOT BE MADE PRIOR TO JU NE 1 2015 IN THE ABSENCE OF ANY ENABLING PROVISION IN SECTION 200A O F THE ACT AS DETAILED BELOW: SIBIA HEALTHCARE (P) LTD. VS. DEPUTY COMMISSIONER OF INCOME TAX (2015) 171 TTJ (ASR) 0145: (2015) 121 DT R 0081 (ASR)(TRIB). TDSPROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOU RCEDELAYED FILING OF TDS STATEMENTASSESSEE CALLED INTO QUESTI ON CORRECTNESS OF ORDER PASSED BY CIT(A) UPHOLDING LEVY OF FEES U/S. 234 E ON ASSESSEE AND BY WAY OF INTIMATION DATED 11 TH JANUARY 2014 ISSUED U/S. 200A IN RESPECT OF PROCESSING OF TDS STATEMENTS IN THIRD QU ARTER OF FY 2012- 13MATTER IN QUESTION WAS IF FEES U/S. 234 E IN RES PECT OF DEFAULTS IN FURNISHING TDS STATEMENTS COULD BE LEVIED IN INTIM ATION U/S. 200A SO FAR AS PERIOD PRIOR TO 1 ST JUNE 2015 WAS CONCERNEDTHERE WAS ADMITTEDLY DELAY IN FILING OF TDS RETURNSIN COURSE PROCESSING OF TDS RETURN AO (TDS) RAISED DEMAND BY WAY OF INTIMATIO N DATED 9 TH SEPTEMBER 2013 ISSUED U/S. 200A FOR LEVY OF FEES U/S. 234 E FOR DELAYED FILING OF TDS STATEMENTCIT(A) UPHELD ORDER OF AOH ELD ADJUSTMENT IN RESPECT OF LEVY OF FEES U/S. 234E WAS INDEED BEYOND SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED U/S. 200AINTIMATION IN QU ESTION WAS APPEALABLE ORDER U/S. 246A(A) AND THEREFORE CIT( A) OUGHT TO HAVE EXAMINED LEGALITY OF ADJUSTMENT MADE UNDER INTIMATI ON IN LIGHT OF SCOPE OF S. 200A CIT(A) MERELY JUSTIFIED LEVY OF FEES ON BASIS OF PROVISIONS OF S. 234EHOWEVER MATTER IN QUESTION WAS IF IMPUGNED LEVY COULD BE EFFECTED IN COURSE OF INTIMATION U/S. 200A AND ITS ANSWER WAS CLEARLY IN NEGATIVENO OTHER PROVISION ENABLING DEMAND IN RESP ECT OF LEVY HAD BEEN POINTED OUT AND IT WAS THUS ADMITTED POSITION THAT IN ABSENCE OF ENABLING PROVISION U/S. 200A NO LEVY COULD BE EFFE CTEDINTIMATION U/S. 200A RAISING DEMAND OR DIRECTING REFUND TO TAX DED UCTOR COULD ONLY BE PASSED WITHIN ONE YEAR FROM END OF FINANCIAL YEAR W ITHIN WHICH RELATED TDS STATEMENT WAS FILEDRELATED TDS STATEMENT WAS F ILED ON 19 TH FEBRUARY 2014 LEVY IN QUESTION COULD ONLY HAVE BEE N MADE AT BEST WITHIN 31 ST MARCH 2015THAT TIME HAD ALREADY ELAPSED AND DEFEC T WAS THUS NOT CURABLEIMPUGNED LEVY OF FEES U/S. 234 E W AS UNSUSTAINABLE IN LAWASSESSEES APPEAL ALLOWED. UNDER THE CIRCUMSTANCES WE WOULD REQUEST YOU TO PL EASE DELETE THE LATE FEE OF RS.45 200/- RAISED U/S 234E OF THE ACT. GROUND OF APPEAL NO. 2 THAT LEVY OF PENALTY IS NOT IN ACCORDANCE WITH SECT ION 234E OF THE ACT SINCE SUB SECTION (3) OF THE SECTION 234E OF TH E ACT STATES THAT IT SHALL BE PAID BEFORE DELIVERING A TDS STATEMENT. ON CE THE TDS ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 8 STATEMENT HAS BEEN ACCEPTED WITHOUT LATE FEES AND T HEN SUCH LATE FEE CANNOT BE RECOVERED LATER ON. 1. THAT YOUR HONOUR ATTENTION IS INVITED TO SECTION 23 4E OF THE ACT WHICH IS BEING REPRODUCED BELOW FOR THE SAKE OF READY REFERE NCE: (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEME NT 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 F AILURE 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. (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT I N ACCORDANCE WITH SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SU B-SECTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY T O 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 T HE CASE MAY BE ON OR AFTER THE 1ST DAY OF JULY 2012. 2. THAT FROM A PLAIN READING OF SECTION 234E(3) OF THE ACT YOUR HONOURS WILL NOTICE THAT THE LEVY U/S 234E HAS TO BE PAID BEFORE SUBMISSION OF THE STATEMENT IN ACCORDANCE WITH SECTION 200(3) OF THE ACT. THUS IN CASE THE TDS STATEMENT HAS BEEN ACCEPTED WITHOUT RECEIPT OF LEVY U/S 234E OF THE ACT THE SAME CANNOT BE RECOVERED AT A LATER POINT OF TIME. 3. THAT THERE IS NO PROVISIONS UNDER THE ACT WHICH ENA BLE CALCULATION OF LEVY U/S 234E OF THE ACT POST FILING OF TDS STATEMENT IN ACCORDANCE WITH SECTION 200(3) OF THE ACT. THEREFORE UNDER THE CIRCUMSTANCES IT IS MOST HUMB LY SUBMITTED THAT THE LEVY U/S 234E OF THE ACT MAY NOT BE RECOVE RED FROM THE ASSESSEE. GROUND OF APPEAL NO. 3 THAT LATE FEE OF RS.45 200/- IMPOSED IS BAD IN LAW SINCE THERE WAS A REASONABLE CAUSE FOR DELAY IN FILING THE STAT EMENT. 1. THAT IT IS WORTHWHILE TO MENTION HERE THAT AS SESSEE HAS DEPOSITED TAX DEDUCTED AT SOURCE WITHIN PRESCRIBED PERIOD OF TIME. TDS FOR THE MONTH OF MARCH WAS ALSO DEPOSITED ON 30.04.2013 WIT HIN PERMISSIBLE TIME LIMIT. TDS RETURN WAS FILED ON 27.12.2013 ONLY BECAUSE OF THE FACT THAT ACCOUNTANT OF THE COMPANY HAD LEFT ON 01. 05.2013 WITHOUT INFORMING ANY PENDENCY OF THE WORK. NEW ACCOUNTANT WAS APPOINTED WHO WAS NOT AWARE OF THE FACT THAT TDS RETURN FOR T HE PERIOD UNDER CONSIDERATION HAS NOT BEEN FILED AND IMMEDIATELY ON BECOMING AWARE OF THIS FACT HE BROUGHT THIS FACT TO THE KNOWLEDGE OF THE ASSESSEE AND ASSESSEE IMMEDIATELY GOT ITS TDS RETURN FILED ON 27 .12.2013. ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 9 2. THAT THERE WAS NO WILFUL DEFAULT IN LATE FILIN G OF TDS RETURN. PENALTY PROCEEDINGS ARE PENAL IN NATURE AND ARE QUA SI CRIMINAL PROCEEDINGS. THERE SHOULD BE CONSCIOUS DEFAULT. NO PENALTY IS TO BE IMPOSED WHEN ASSESSEE HAS NOT ACTED DELIBERATIVELY IN DEFIANCE OF THE ACT. 8. ON THE CONTRARY IT WAS ARGUED BY THE LD. DR THAT IGNORANCE OF LAW ITSELF DOES NOT GIVE SUFFICIENT CAUSE FOR CONDO NING THE DELAY AND NONFILING OF APPEAL WITHIN STATUTORY LIMIT. EVEN OT HERWISE THE ASSESSEE ARE PRIVATE HOSPITALS/ORGANIZATIONS RUN BY EDUCATED AND COMPETENT PERSONS AND IT IS EXPECTED FROM A RESPONSIBLE CITIZ EN TO ABIDE BY LAWS OF THE LAND AND TO COMPLY WITH THE RULES AND REGULATIO NS CONCERNED THERETO. IT WAS FURTHER ARGUED BY THE LD. DR THAT T HE DELAY CAN BE MINIMAL BUT IT CANNOT BE IN ORDINATE DELAY AND HAS TO BE EXPLAINED WITH SATISFACTION. EVEN OTHERWISE THE LD. CIT(A) ANALYZED THE FACTS A ND CIRCUMSTANCES AND ALSO DEALT WITH ALL THE JUDGMENTS RELIED UPON BY THE ASSESSEES THEREFORE NO INTERFERENCES REQUIRED TO BE CALLED FOR IN THE ORDER OF THE LD. CIT(A). 9. WE HAVE GONE THOROUGH THE JUDGMENTS RELIED UPON BY THE PARTIES AS THE LD. AR EMPHASIZED THAT THE LD. CIT(A) HAD CO MMITTED ERROR BY NOT CONDONING THE DELAY IN FILING THE STATEMENTS AND NO REASONABLE CAUSE HAS BEEN SHOWN AND EVEN OTHERWISE DEMAND HAS BEEN C REATED WITHOUT GIVING OPPORTUNITY OF BEING HEARD WHICH MAKES THE D EMAND BAD IN LAW BEING AGAINST THE PRINCIPLE OF NATURAL JUSTICE. ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 10 IN OUR CONSIDERED VIEW WE FEEL IT APPROPRIATE TO DECIDE THE DISMISSAL OF THE APPEAL BY THE LD. CIT(A) ON THE GR OUND OF CONDONATION OF DELAY AS THE JUDGMENT PASSED IN THE CASE OF COLLECT OR LAND ACQUISITION MST KATIJI & ORS.(1987) 167 CTR 471 BY THE APEX COU RT IS A LAND MARK AND GUIDING JUDGMENT TO DEAL WITH THE DELAY IN FILI NG OF APPEAL AND THE LAW SETTLED BY THE APEX COURT WHICH ARE REPRODUCED HEREIN BELOW. 1. ORDINARILY A LITIGATION DOES NOT STAND TO BENE FIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERI TORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED TH E HIGHEST THEN CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERI TS AFTER HEARING THE PARTIES. 3. EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE WHY NOT EVERY HOU R'S DELAY EVERY SECOND'S DELAY. THE DOCTRINE MUST BE APPLIED ON A RATIONAL COMMONSENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDE RATIONS ARC PITTED AGAINST EACH OTHER CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO HE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON- DELIBERATE D ELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIO NED DELIBERATELY OR ON ACCOUNT OF CULPABLE NEGLIGENCE OR ON ACCOUNT OF MALAFIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE NUTS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECT ED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUND S BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO SO . IT WAS VEHEMENTLY ARGUED BY THE LD. AR THAT THERE WAS A DELAY FOR NON FILING IN APPEAL DUE TO IGNORANCE OF LAW BUT RE FUSING TO CONDONE THE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THR OWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED AND T HE MAXIMUM CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS A FTER HEARING THE PARTIES IF THE DELAY IS CONDONED. ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 11 WE HAVE GIVEN OUR CAUTIOUS THOUGHTS TO THE FACTS A ND CIRCUMSTANCES AND SUBMISSIONS OF THE PARTIES AS THE ASSESSEE SUBMITTED THAT INITIALLY THERE WAS AN ACCOUNTANT WHO HAVE NOT COMPLIED WITH THE PROVISIONS OF LAW AND ALSO NEVER BROUGHT TO THE KNO WLEDGE OF THE ASSESSEE AND ONCE NEW ACCOUNTANT CAME THEN ONLY HE REVEALED THAT IN THE INSTANT CASES THE APPEALS PRESCRIBED BY LAW AND TO BE FILED WITHIN THE LIMITATION PERIOD. WE MUST FEEL IT APPROPRIATE TO M ENTION HEREIN THAT THE ASSESSEE FAILED TO DISCLOSE THE NAME OR DETAILS OF THE PREVIOUS ACCOUNTANT OR THE NEW ACCOUNTANT AS WELL THEREFORE THIS ARGU MENT DOES NOT ATTRACT OUR ATTENTION. WITH REGARD TO SECOND CONTENTION AS IT WAS SUBMITTED BY THE LD. AR THAT THE PROVISIONS OF SEC.234E OF THE ACT C AME INTO EFFECT FROM 1 ST JUNE 2015 BY WAY OF FINANCE ACT 2015 AND THE ASSE SSEE WAS NOT ACQUAINTED WITH THE SAID PROVISION AND THERE WAS TH E BONAFIDE IGNORANCE OF LAW THEREFORE THE ASSESSEE CASE TO BE CONSIDER ED LIBERALLY. IN OUR CONSIDERED OPINION IGNORANCE OF LAW IS NOT EXCUSABLE AND SPECIALLY EDUCATED AND RESPONSIBLE CITIZENS CANNOT BE ALLOWED TO JEOPARDIZES THE INTEREST OF THE NATIONAL ECONOMY AN D FURTHER CANNOT BE EXCUSED FOR NOT FOLLOWING THE RULES & REGULATIONS P RESCRIBED IN STATUTE AS IT IS A FACT THAT THEY ARE HAVING GOOD SOURCES T O EMPLOY COMPETENT PROFESSIONAL TO DEAL WITH THEIR FINANCIAL MATTERS. NOW COMING TO THE QUESTION IF THERE IS UNREASONAB LE DELAY THEN HOW THE RESPONDENT WOULD SUFFER/SUFFERING AS IT IS WELL SETTLED LAW THAT PRINCIPLE OF VIGILANTIBUS NON DORMENTIBUS JURA S UBVENIUNT ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 12 MEANT FOR THE PERSONS WHO ARE NOT VIGILANT FOR HIS RIGHT HOWEVER CONSIDERING THE OVER ALL FACTS AND CIRCUMSTANCES AS THE MATTER HAS NOT REACHED TO THE CONCLUSION AND STILL REMAINED TO BE UNADJUDICATED THEREFORE IT WOULD BE APPROPRIATE IF THE PETITION ERS CAN BE FASTENED WITH SOME LIABILITY SO THAT THEY CAN BECOME MORE VIGILAN T AND CONSCIOUS ABOUT THEIR RIGHT AS WELL AS THEIR DUTIES IN COMPLIANCE O F THE RULES AND REGULATIONS AS PRESCRIBED BY STATUTE. THEREFORE IN OUR CONSIDERED OPINION IT IS IMPE RATIVE TO IMPOSE REASONABLE COSTS TO AFFORD THE OPPORTUNITIES TO THE ASSESSEE FOR RE- AGITATING THEIR RIGHTS BEFORE THE CIT(A). ON THE AF ORESAID ANLIZATION AND THE CONCLUSION WE FEEL IT APPROPRIATE TO CONDONE T HE DELAY AS MENTIONED IN PARA-2 OF ALL THE SAID APPEALS HOWEVER RESTRIC TING OURSELF FROM IMPOSING COST BUT TO REMIND THE ASSESSEE AGAIN TO F OLLOW LAWS RULES & REGULATIONS IN TIME. THE CASES ARE REMANDED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE AFRESH ON MERITS WITHOUT BEING INFLUENCED BY ANY OB SERVATIONS/MERITS OF THE CASE. 12. IN THE RESULT THE APPEALS FILED BY THE ASSESSE ES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28. 10. 2016 SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED:28.10.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: ITA NOS .386 TO 391(ASR)/2016 ASST. YEA RS: 2013-14 TO 2014-15 13 (2) THE (3) THE CIT(A) (4) THE CIT (5) THE SR DR I.T.A.T. TRUE COPY BY ORDER