Aarcity Infrastructure P.Ltd, New Delhi v. ACIT, Circle-73(1), Ghaziabad

ITA 5990/DEL/2017 | 2013-2014
Pronouncement Date: 29-11-2019 | Result: Allowed

Appeal Details

RSA Number 599020114 RSA 2017
Assessee PAN BADPJ0521P
Bench Delhi
Appeal Number ITA 5990/DEL/2017
Duration Of Justice 2 year(s) 2 month(s) 7 day(s)
Appellant Aarcity Infrastructure P.Ltd, New Delhi
Respondent ACIT, Circle-73(1), Ghaziabad
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 29-11-2019
Assessment Year 2013-2014
Appeal Filed On 21-09-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G & A NEW DELHI ! ! ! ! ' '' ' ' '' ' %! %! %! %! & & & & BEFORE MS. SUSHMA CHOWLA JM & SH .R.K.PANDA AM ' '' ' / ITA NO.5386/DEL/2017 '' '' '' '' / ASSESSMENT YEAR: 2016-17 UDIT JAIN A-171 PREET VIHAR DELHI-110092. PAN-BADPJ0521P .......... () /APPELLANT VS THE ACIT CPC-TDS UTTAR PRADESH. . *+() / RESPONDENT () - / APPELLANT BY : SH. RAJIV JAIN CA *+() - / RESPONDENT BY : SH. SARAS KUMAR SR.DR ' '' ' / ITA NO.5989/DEL/2017 '' '' '' '' / ASSESSMENT YEAR: 2013-14 AARCITY BUILDERS P.LTD. 301 KRISHNA APRA BUSINESS CARE NETAJI SUBHASH PLACE PITAMPURA NEW DELHI-110034. PAN-AAICA7013Q .......... () /APPELLANT VS THE ACIT CPC-TDS GHAZIABAD UTTAR PRADESH. . *+() / RESPONDENT 2 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 ' '' ' / ITA NO.5990/DEL/2017 '' '' '' '' / ASSESSMENT YEAR: 2013-14 AARCITY BUILDERS P.LTD. 301 KRISHNA APRA BUSINESS CARE NETAJI SUBHASH PLACE PITAMPURA NEW DELHI-110034. PAN-AAKCS1067N .......... () /APPELLANT VS THE ACIT CIRCLE-73(1) GHAZIABAD. . *+() / RESPONDENT () - / APPELLANT BY : SH. SURESH K. GUPTA CA *+() - / RESPONDENT BY : SH.SANJOG KAPOOR SR.DR ./% / DATE OF HEARING: 28.11.2019 01 ./% / DATE OF PRONOUNCEMENT: 29.11.2019 / ORDER PER SUSHMA CHOWLA JM: THESE THREE APPEALS FILED BY DIFFERENT AS SESSEE ARE AGAINST ORDER OF CIT(A)-19 NEW DELHI AND CIT(A)-41 NEW DELHI DATED 03.07.2017; 26.07.2017 & 26.07.2017 RELATING TO ASS ESSMENT YEARS 2016-17; 2013-14 AND 2013-14 RESPECTIVELY. 2. THE ISSUE ARISING IN THE PRESENT BUNCH OF APPEAL S IS AGAINST THE IMPOSITION OF LATE FILING FEE U/S 234E OF THE ACT. TO ADJUDICATE THE ISSUE WE ARE FIRST REFERRING TO THE FACTS AND ISSUE RAISE D IN ITA NO.5380/DEL/2017 RELATING TO ASSESSMENT YEAR 2016-1 7. 3 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 3. BRIEFLY IN THE FACTS OF THE CASE THE ASSESSEE HA D DEDUCTED TAX AT SOURCE U/S 195 OF THE ACT AND WAS TO DEPOSIT THE SA ME. AFTER THE AFORESAID DEPOSIT OF TAX AT SOURCE THE REQUIREMENT WAS TO FURNISH THE INFORMATION IN FORM NO.27A. THE ASSESSEE FAILED TO FURNISH THE SAID RETURN IN TIME AND HENCE INTIMATION WAS ISSUED TO THE ASSESSEE U/S 200A OF THE ACT UNDER WHICH LATE FILING FEE WAS CHA RGED U/S 234E OF THE ACT. 4. IN THE FACTS OF THE ASSESSEE IN ITA NO.5989/DEL/ 2017 THE ASSESSEE HAD DEDUCTED TAX AT SOURCE FOR THE 3 RD QUARTER OF THE FINANCIAL YEAR 2012-13 WHICH HAD TO BE DEPOSITED IN THE GOVERNMENT TREASURY AND THEREAFTER STATEMENT HAD TO BE FILED IN THE REQUIS ITE FORM 26Q WITHIN STIPULATED PERIOD. THE ASSESSEE FILED SAID INFORMA TION LATE AND CPC TDS PROCESSED THE SAID INFORMATION AND RAISED DEMAND F OR LATE FILING FEE IN TERMS OF SECTION 234E OF THE ACT AND ALSO CHARGED I NTEREST U/S 220(2) OF THE ACT. 5. THE CIT(A) RELYING ON THE DECISION OF THE HONBL E GUJARAT HIGH COURT IN RAJESH KOURANI VS UNION OF INDIA [2017] 83 TAXMANN.COM 137 (GUJ.) UPHELD THE ORDER OF THE ASSESSING OFFICER. RELIANCE PLACED BY THE LD.AR FOR THE ASSESSEE ON THE DECISION OF HONBLE K ARNATAKA HIGH COURT IN FATEHRAJ SINGHVI & OTHERS VS UNION OF INDIA [201 6] 289 CTR 602 (KAR.) AND AMRITSAR BENCH OF TRIBUNAL IN SIBIA HEALTH CARE PVT.LTD. VS DY.CIT IN ITA NO.90/ASR/2015 WAS NOT ACCEPTED BY THE CIT(A ). THE CIT(A) WAS 4 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 OF THE VIEW THAT WHERE SECTION 234E OF THE ACT WAS CHARGING PROVISION IT WAS HELD AS UNDER:- 6. THE DECISIONS CITED BY THE ASSESSEE HAVE BEEN D ULY CONSIDERED BY THE HIGH COURT OF GUJARAT. SECTION 23 4E PRESCRIBES FEE FOR EVERY DAY OF DEFAULT IN FILING OF STATEMENT U/S 200(3). THIS WAS DONE FOR ENSURING COMPLIANCE OF DEDUCTION AND DEPOS ITING IT WITH THE GOVERNMENT AND FILING STATEMENTS FOR THE PERIOD CON CERNED INFORMING THE TAX AUTHORITIES OF THE SAME IN A PRE SCRIBED AND VERIFIED. SECTION 234E IS A CHARGING PROVISION LEGI SLATED FOR LEVY OF FEES FOR CERTAIN DEFAULTS. EVEN IN THE ABSENCE OF S ECTION 200A LEVY OF FEE U/S 234E IS MANDATED AND IS PERMISSIBLE. SECTIO N 200A PERTAINS TO PROCESSING OF STATEMENT OF TDS. IT IS TO MAKE AD JUSTMENTS AND CALCULATIONS. IT IS A MACHINERY PROVISION AND NOT A CHARGING SECTION. THE COURTS HAVE HELD THAT THE AMENDMENT TO SECTION [I.E. RECASTING OF SECTION 200A(L)(C)] 200A(L)(C) CAN BE CONSIDERED IN THE NATURE OF A CLARIFACTORY AMENDMENT. THE LEVY OF FEE U/S 234E CA N BE DONE PRIOR TO 01.06.2015 AND IS HELD TO BE LEGALLY CORRECT AS THE CHARGING SECTION SECTION 234E CAME INTO OPERATION FROM 01.0 6.2012. 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF T HE CIT(A). 7. IN THE CASE OF UDIT JAIN THE LD.AR FOR THE ASSE SSEE POINTED OUT THAT THE AMENDMENT TO THE SECTION WAS W.E.F. 01.06. 2015 AND THE ISSUE IN THIS APPEAL IS WITH REGARD TO FIRST QUARTER OF F INANCIAL YEAR 2015-16. HE FURTHER STATED THAT THE ASSESSEE WAS A SMALL BUS INESSMAN AND HAD DEDUCTED TAX AT SOURCE AGAINST PURCHASE OF PROPERTY U/S 195 OF THE ACT. THE SAID TAX WAS DEDUCTED ON 18.05.2015 AND WAS DEP OSITED ON 18.05.2015. HOWEVER THE RETURN FOR THE TDS DEDUCT ION WAS NOT FILED IN TIME IN FORM NO.27A WHICH WAS FILED ON 26.03.2016. HE FURTHER STATED THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS COVE RED BY THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN MAHARASHTRA CRICKET A SSOCIATION PUNE VS DCIT [2016] 74 TAXMANN.COM 6 (PUNE-TRIB.). HE FURT HER POINTED OUT THAT THE ISSUE IS COVERED BY THE DECISION OF HONBLE KAR NATAKA HIGH COURT IN 5 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 FATEHRAJ SINGHVI & OTHERS VS UNION OF INDIA (SUPRA) AND ALSO BY LATER DECISION OF PUNE BENCH OF TRIBUNAL IN MEDICAL SUPER INTENDENT RURAL HOSPITAL DOBI BK VS DCIT [2018] 100 TAXMANN.COM 78 (PUNE-TRIB.) AND THE DECISION OF DELHI BENCH OF TRIBUNAL IN MEGHNA G UPTA VS ACIT [2018] 99 TAXMANN.COM 334 (DELHI-TRIB.). THE LD.AR FOR TH E ASSESSEE STATED THAT THOUGH THE CIT(A) HAD RELIED ON THE DECISION O F HONBLE GUJARAT HIGH COURT IN RAJESH KOURANI VS UNION OF INDIA (SUPRA) B UT SINCE THE DECISION OF NON JURISDICTIONAL HIGH COURT IS IN FAVOUR OF TH E ASSESSEE AND IN THE ABSENCE OF ANY DECISION OF THE JURISDICTIONAL HIGH COURT THE RATIO OF THE SAME IS TO BE APPLIED. 8. THE LD.DR FOR THE REVENUE STRONGLY OPPOSED THE P ROPOSITION RAISED BY THE LD.AR FOR THE ASSESSEE AND STRONGLY RELIED O N THE ORDER OF THE AUTHORITIES BELOW. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH NEEDS TO BE ADJUDICATED IN THESE APPEAL S IS THE CHARGING OF LATE FILING FEE U/S 234E OF THE ACT WHILE ISSUING T HE INTIMATION U/S 200A OF THE ACT. THE CASE OF THE ASSESSEE BEFORE US IS THAT WHERE THE LEGISLATURE HAS INSERTED CLAUSE (C) TO SECTION 200A (1) OF THE ACT W.E.F 01.06.2015 THEN IN RESPECT OF THE TDS STATEMENTS W HICH WERE FILED UNDER THE RESPECTIVE SECTIONS OF THE ACT FOR THE P ERIOD PRIOR TO 01.06.2015 NO LATE FILING FEE COULD BE CHARGED U/ S 234E OF THE ACT IN THE INTIMATION ISSUED U/S 200A OF THE ACT. WE FIND THAT THE SAID ISSUE HAS BEEN ADJUDICATED BY THE HONBLE KARNATAKA HIGH COURT IN FATEHRAJ 6 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 SINGHVI & OTHERS VS UNION OF INDIA (SUPRA) WHICH P ROPOSITION HAS BEEN APPLIED BY THE PUNE BENCH OF THE TRIBUNAL IN MEDICA L SUPERINTENDENT RURAL HOSPITAL DOBI BK VS DCIT (SUPRA). THE TRIBU NAL HAD ALSO TAKEN NOTE OF THE DECISION OF HONBLE GUJARAT HIGH COURT IN RAJESH KOURANI VS UNION OF INDIA (SUPRA) AND APPLYING THE PROPOSITION THAT WHERE THERE WAS DIFFERENCE OF OPINION BETWEEN HONBLE HIGH COURTS O N A PARTICULAR ISSUE AND IN THE ABSENCE OF ANY DECISION RENDERED BY THE JURISDICTIONAL HIGH COURT THEN THE DECISION IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED AS HELD BY HONBLE SUPREME COURT IN VEGETABLES PRODUCT S LTD. [1973] 88 ITR 192(SC). THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER:- 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. THE ISSUE ARISING IN THE PRESENT BUNCH OF APPEALS I S AGAINST LEVY OF LATE FILING FEES UNDER SECTION 234E OF THE ACT WHIL E ISSUING INTIMATION UNDER SECTION 200A OF THE ACT IN THE FIRST BUNCH O F APPEALS. THE SECOND BUNCH OF APPEALS IN THE CASE OF JUNAGADE HEA LTHCARE PVT. LTD. IS AGAINST ORDER OF ASSESSING OFFICER PASSED U NDER SECTION 154 OF THE ACT REJECTING RECTIFICATION APPLICATION MOVE D BY ASSESSEE AGAINST INTIMATION ISSUED LEVYING LATE FILING FEES CHARGED UNDER SECTION 234E OF THE ACT. THE CASE OF ASSESSEE BEFOR E US IS THAT THE ISSUE IS SQUARELY COVERED BY VARIOUS ORDERS OF TRIB UNAL WHEREIN THE ISSUE HAS BEEN DECIDED IN RESPECT OF LEVY OF LATE F ILING FEES UNDER SECTION 234E OF THE ACT IN THE ABSENCE OF EMPOWERM ENT BY THE ACT UPON ASSESSING OFFICER TO LEVY SUCH FEES WHILE ISSU ING INTIMATION UNDER SECTION 200A OF THE ACT. THE TRIBUNAL VIDE OR DER DATED 21.09.2016 WITH LEAD ORDER IN ITA NOS.560/PN/2016 & 561/PN/2016 1018/PN/2016 TO 1023/PN/2016 IN MAHARA SHTRA CRICKET ASSOCIATION VS. DCIT (CPC)-TDS GHAZIABAD RELATING TO ASSESSMENT YEARS 2013-14 AND 2014-15 FOR THE RESPEC TIVE QUARTERS DELIBERATED UPON THE ISSUE AND HELD AS UNDER:- 34. ACCORDINGLY WE HOLD THAT THE AMENDMENT TO SEC TION 200A(1) OF THE ACT IS PROCEDURAL IN NATURE AND IN V IEW THEREOF THE ASSESSING OFFICER WHILE PROCESSING THE TDS STAT EMENTS / RETURNS IN THE PRESENT SET OF APPEALS FOR THE PERIO D PRIOR TO 01.06.2015 WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE THE INTIMATION ISSUED BY TH E ASSESSING OFFICER UNDER SECTION 200A OF THE ACT IN ALL THESE 7 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 APPEALS DOES NOT STAND AND THE DEMAND RAISED BY WAY OF CHARGING THE FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. THE INTIMATION ISSUED BY T HE ASSESSING OFFICER WAS BEYOND THE SCOPE OF ADJUSTMEN T PROVIDED UNDER SECTION 200A OF THE ACT AND SUCH ADJ USTMENT COULD NOT STAND IN THE EYE OF LAW. 12. THE SAID PROPOSITION HAS BEEN APPLIED IN THE NE XT BUNCH OF APPEALS WITH LEAD ORDER IN VIDYA VARDHANI EDUCATION AND RESEARCH FOUNDATION IN ITA NOS.1887 TO 1893/PUN/2016 AND OTH ERS RELATING TO ASSESSMENT YEARS 2013-14 AND 2014-15 VIDE ORDER DATED 13.01.2017 AND ALSO IN SWAMI VIVEKANAND VIDYALAYA V S. DCIT(CPC)-TDS (SUPRA) AND MEDICAL SUPERINTENDANT RU RAL HOSPITAL VS. ACIT (CPC)-TDS IN ITA NOS.2072 & 2073/PUN/2017 ORDER DATED 21.12.2017 WHICH HAS BEEN RELIED UPON BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE. 13. THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI VS. UNION OF INDIA (SUPRA) HAD ALSO LAID DO WN SIMILAR PROPOSITION THAT THE AMENDMENT TO SECTION 200A OF T HE ACT W.E.F. 01.06.2015 HAS PROSPECTIVE EFFECT AND IS NOT APPLIC ABLE FOR THE PERIOD OF RESPECTIVE ASSESSMENT YEARS PRIOR TO 01.0 6.2015. THE RELEVANT FINDINGS OF THE HONBLE HIGH COURT ARE IN PARAS 21 AND 22 WHICH READ AS UNDER:- 21. HOWEVER IF SECTION 234E PROVIDING FOR FEE WAS BROUGHT ON THE STATE BOOK KEEPING IN VIEW THE AFORESAID PU RPOSE AND THE INTENTION THEN THE OTHER MECHANISM PROVIDED FO R COMPUTATION OF FEE AND FAILURE FOR PAYMENT OF FEE U NDER SECTION 200A WHICH HAS BEEN BROUGHT ABOUT WITH EFFE CT FROM 1.6.2015 CANNOT BE SAID AS ONLY BY WAY OF A REGULAT ORY MODE OR A REGULATORY MECHANISM BUT IT CAN RATHER BE TERM ED AS CONFERRING SUBSTANTIVE POWER UPON THE AUTHORITY. IT IS TRUE THAT A REGULATORY MECHANISM BY INSERTION OF ANY PR OVISION MADE IN THE STATUTE BOOK MAY HAVE A RETROACTIVE CH ARACTER BUT WHETHER SUCH PROVISION PROVIDES FOR A MERE REG ULATORY MECHANISM OR CONFERS SUBSTANTIVE POWER UPON THE AUT HORITY WOULD ALSO BE A ASPECT WHICH MAY BE REQUIRED TO BE CONSIDERED BEFORE SUCH PROVISIONS IS HELD TO BE RET ROACTIVE IN NATURE. FURTHER WHEN ANY PROVISION IS INSERTED FOR LIABILITY TO PAY ANY TAX OR THE FEE BY WAY OF COMPENSATORY IN NA TURE OR FEE INDEPENDENTLY SIMULTANEOUSLY MODE AND THE MANNE R OF ITS ENFORCEABILITY IS ALSO REQUIRED TO BE CONSIDERED AN D EXAMINED. NOT ONLY THAT BUT IF THE MODE AND THE MANNER IS N OT EXPRESSLY PRESCRIBED THE PROVISIONS MAY ALSO BE VULNERABLE. ALL SUCH ASPECTS WILL BE REQUIRED TO BE CONSIDERED BEFORE ON E CONSIDERS REGULATORY MECHANISM OR PROVISION FOR REGULATING TH E MODE AND THE MANNER OF RECOVERY AND ITS ENFORCEABILITY A S 8 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 RETROACTIVE. IF AT THE TIME WHEN THE FEE WAS PROVID ED UNDER SECTION 234E THE PARLIAMENT ALSO PROVIDED FOR ITS UTILITY FOR GIVING PRIVILEGE UNDER SECTION 271H(3) THAT TOO BY EXPRESSLY PUT BAR FOR PENALTY UNDER SECTION 272A BY INSERTION OF PROVISO TO SECTION 272A(2) IT CAN BE SAID THAT A PARTICULA R SET UP FOR IMPOSITION AND THE PAYMENT OF FEE UNDER SECTION 234 E WAS PROVIDED BUT IT DID NOT PROVIDE FOR MAKING OF DEMA ND OF SUCH FEE UNDER SECTION 200A PAYABLE UNDER SECTION 234E. HENCE CONSIDERING THE AFORESAID PECULIAR FACTS AND CIRCUM STANCES WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE LEARN ED COUNSEL FOR RESPONDENT-REVENUE THAT INSERTION OF CLAUSE (C) TO (F) UNDER SECTION 200A(1) SHOULD BE TREATED AS RETROACTIVE IN CHARACTER AND NOT PROSPECTIVE. 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 P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFE CT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES WE F IND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTI ON (1) OF SECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFE CT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION F OR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY T HE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSM ENT 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 PER MIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST. 14. THE HONBLE HIGH COURT THUS HELD THAT WHERE THE IMPUGNED NOTICES GIVEN BY REVENUE DEPARTMENT UNDER SECTION 2 00A OF THE ACT WERE FOR THE PERIOD PRIOR TO 01.06.2015 THEN SAME WERE ILLEGAL AND INVALID. VIDE PARA 27 IT WAS FURTHER HELD THAT THE IMPUGNED NOTICES UNDER SECTION 200A OF THE ACT WERE FOR COMPUTATION AND INTIMATION FOR PAYMENT OF FEES UNDER SECTION 234E OF THE ACT A S THEY RELATE FOR THE PERIOD OF TAX DEDUCTED AT SOURCE PRIOR TO 01.06 .2015 WERE BEING SET ASIDE. 15. IN OTHER WORDS THE HONBLE HIGH COURT OF KARNA TAKA EXPLAINED THE POSITION OF CHARGING OF LATE FILING FEES UNDER SECTION 234E OF THE ACT AND THE MECHANISM PROVIDED FOR COMPUTATION OF F EES AND FAILURE FOR PAYMENT OF FEES UNDER SECTION 200A OF THE ACT W HICH WAS BROUGHT ON STATUTE W.E.F. 01.06.2015. THE SAID AMEN DMENT WAS HELD TO BE PROSPECTIVE IN NATURE AND HENCE NOTICES ISSUED UNDER SECTION 200A OF THE ACT FOR COMPUTATION AND INTIMAT ION FOR PAYMENT 9 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 OF LATE FILING FEES UNDER SECTION 234E OF THE ACT R ELATING TO THE PERIOD OF TAX DEDUCTION PRIOR TO 01.06.2015 WERE NOT MAINT AINABLE AND WERE SET ASIDE BY THE HONBLE HIGH COURT. IN VIEW O F SAID PROPOSITION BEING LAID DOWN BY THE HONBLE HIGH COURT OF KARNAT AKA (SUPRA) THERE IS NO MERIT IN OBSERVATIONS OF CIT(A) THAT IN THE PRESENT CASE WHERE THE RETURNS OF TDS WERE FILED FOR EACH OF THE QUARTERS AFTER 1ST DAY OF JUNE 2015 AND EVEN THE ORDER CHARGING LATE FILING FEES WAS PASSED AFTER JUNE 2015 THEN THE SAME ARE MAINTAIN ABLE SINCE THE AMENDMENT HAD COME INTO EFFECT. THE CIT(A) HAS OVER LOOKED THE FACT THAT NOTICES UNDER SECTION 200A OF THE ACT WERE ISS UED FOR COMPUTING AND CHARGING LATE FILING FEES UNDER SECTION 234E OF THE ACT FOR THE PERIOD OF TAX DEDUCTED PRIOR TO 1ST DAY OF JUNE 20 15. THE SAME CANNOT BE CHARGED BY ISSUE OF NOTICES AFTER 1ST DAY OF JUNE 2015 EVEN WHERE THE RETURNS WERE FILED BELATEDLY BY THE DEDUCTOR AFTER 1 ST JUNE 2015 WHERE IT CLEARLY RELATED TO THE PERIOD PRIOR TO 01.06.2015. 16. WE HOLD THAT THE ISSUE RAISED IN THE PRESENT BU NCH OF APPEALS IS IDENTICAL TO THE ISSUE RAISED BEFORE THE TRIBUNAL I N DIFFERENT BUNCHES OF APPEALS AND SINCE THE AMENDMENT TO SECTION 200A OF THE ACT WAS PROSPECTIVE IN NATURE THE ASSESSING OFFICER WHILE PROCESSING TDS RETURNS / STATEMENTS FOR THE PERIOD PRIOR TO 01.06. 2015 WAS NOT EMPOWERED TO CHARGE LATE FILING FEES UNDER SECTION 234E OF THE ACT EVEN IN CASES WHERE SUCH TDS RETURNS WERE FILED BEL ATEDLY AFTER JUNE 2015 AND EVEN IN CASES WHERE THE ASSESSING OF FICER PROCESSED THE SAID TDS RETURNS AFTER JUNE 2015. AC CORDINGLY WE HOLD THAT INTIMATION ISSUED BY ASSESSING OFFICER UN DER SECTION 200A OF THE ACT IN ALL THE APPEALS DOES NOT STAND AND TH E DEMAND RAISED BY CHARGING LATE FILING FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. 17. BEFORE PARTING WE MAY ALSO REFER TO THE ORDER OF CIT(A) IN RELYING ON THE DECISION OF HONBLE HIGH COURT OF GUJARAT IN RAJESH KOURANI VS. UNION OF INDIA (SUPRA). ON THE OTHER HAND THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS POIN TED OUT THAT THE ISSUE IS SETTLED IN FAVOUR OF ASSESSEE BY THE HONB LE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI VS. UNION OF INDIA (SUPRA). SINCE WE HAVE ALREADY RELIED ON THE SAID RATIO LAID DOWN BY THE HONBLE HIGH COURT OF KARNATAKA THE CIT(A) HAS MIS -REFERRED TO BOTH DECISIONS OF HONBLE HIGH COURT OF KARNATAKA AND HO NBLE HIGH COURT OF GUJARAT; BUT THE CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE SETTLED LAW THAT WHERE THERE IS DIFFERENCE OF O PINION BETWEEN DIFFERENT HIGH COURTS ON AN ISSUE THEN THE ONE IN FAVOUR OF ASSESSEE NEEDS TO BE FOLLOWED AS HELD BY THE HON'BLE SUPREME COURT IN CIT VS. M/S. VEGETABLE PRODUCTS LTD. (SUPRA) IN THE AB SENCE OF ANY DECISION RENDERED BY THE JURISDICTIONAL HIGH COURT. THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (2015) 54 TAXMANN.COM 200 (BOM) HAD DECIDED THE CON STITUTIONAL 10 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 VALIDITY OF PROVISIONS OF SECTION 234E OF THE ACT A ND HAD HELD THEM TO BE ULTRA VIRES BUT HAD NOT DECIDED THE SECOND ISSUE OF AMENDMENT BROUGHT TO SECTION 200A OF THE ACT W.E.F. 01.06.201 5. IN VIEW THEREOF RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE H ONBLE HIGH COURT OF KARNATAKA AND PUNE BENCH OF TRIBUNAL IN SERIES O F CASES WE DELETE THE LATE FILING FEES CHARGED UNDER SECTION 2 34E OF THE ACT FOR THE TDS RETURNS FOR THE PERIOD PRIOR TO 01.06.2015. 18. FURTHER BEFORE PARTING WE MAY ALSO REFER TO TH E ORDER OF CIT(A) IN THE CASE OF JUNAGADE HEALTHCARE PVT. LTD. WHERE TH E CIT(A) HAD DISMISSED APPEALS OF ASSESSEE BEING DELAYED FOR PER IOD OF DECEMBER 2013 AND JULY 2014. THE CIT(A) WHILE COM PUTING DELAY HAD TAKEN THE DATE OF INTIMATION UNDER SECTION 200A OF THE ACT AS THE BASIS WHEREAS THE ASSESSEE HAD FILED APPEALS B EFORE CIT(A) AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE A CT. THE CIT(A) HAD NOTED THAT RECTIFICATION APPLICATION WAS FILED IN FEBRUARY 2018 WHICH WAS REJECTED BY CPC ON THE SAME DAY. THE CIT( A) WAS OF THE VIEW THAT THERE WAS NO MERIT IN CONDONATION OF DELA Y WHEREIN APPEALS WERE FILED BEYOND THE PERIOD PRESCRIBED. TH E ASSESSEE HAD FILED APPEALS AGAINST THE ORDER PASSED UNDER SECTIO N 154 OF THE ACT HENCE THE TIME PERIOD OF APPEALS FILED BY ASSESSEE BEFORE THE CIT(A) HAVE TO BE COMPUTED FROM THE DATE OF ORDER PASSED U NDER SECTION 154 OF THE ACT AND NOT FROM THE DATE OF ISSUE OF IN TIMATION. THUS THERE IS NO MERIT IN THE ORDER OF CIT(A) IN DISMISS ING THE APPEALS OF ASSESSEE ON THIS ISSUE. 19. WE FIND SIMILAR ISSUE HAS BEEN DECIDED BY US IN THE CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL VS. ACIT(CPC) -TDS (SUPRA) AND VIDE PARA 15 ORDER DATED 21.12.2017 IT WAS HEL D AS UNDER:- 15. FURTHER BEFORE PARTING WE MAY ALSO REFER TO THE ORDER OF THE CIT(A) IN THESE TWO APPEALS. THE CIT(A) HAD DIS MISSED THE APPEALS OF THE ASSESSEE BEING DELAYED FOR A PERIOD OF TWO AND HALF YEARS. THE CIT(A) HAD TAKEN THE DATE OF INTIMA TION UNDER SECTION 200A(3) DATED 07-08-2014 AND COMPUTED THE D ELAY IN FILING THE APPEAL LATE BEFORE HIM. HOWEVER THE ASS ESSEE HAD FILED THE APPEAL BEFORE THE CIT(A) AGAINST THE ORDE R PASSED UNDER SECTION 154 OF THE ACT. THE SAID APPLICATION FOR RECTIFICATION UNDER SECTION 154 WAS FILED ON 08-06- 2017/09- 03-2017 IN THE RESPECTIVE YEARS. THE SAID APPLICATI ON WAS DECIDED BY THE ASSESSING OFFICER ON 09-06-2017. THE ASSESSEE FILED AN APPEAL AGAINST THE DISMISSAL OF T HE RECTIFICATION APPLICATION FILED UNDER SECTION 154 O F THE ACT. THE SAID FACT IS CLEAR FROM THE PERUSAL OF FORM NO.35 W ITH SPECIAL REFERENCE TO COLUMN 2(A) AND 2(B). IN THE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES WE FIND NO MERIT IN T HE ORDER OF CIT(A) IN THE CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL SURGANA IN DISMISSING THE APPEAL IN-LIMINE BEING FI LED BEYOND 11 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 THE PERIOD OF LIMITATION. WE HAVE ALREADY DECIDED T HE ISSUE ON MERITS IN FAVOUR OF ASSESSEE. 20. WE HAVE ALREADY DECIDED THE ISSUE ON MERITS IN FAVOUR OF ASSESSEE. ACCORDINGLY THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN ALL APPEALS ARE ALLOWED. 10. THE DELHI BENCH OF TRIBUNAL IN MEGHNA GUPTA VS ACIT (SUPRA) HAS ALSO LAID DOWN SIMILAR PROPOSITION AND HELD AS UNDE R:- 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PE RUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS AS WE LL AS MATERIAL REFERRED TO BEFORE US. AT THE OUTSET FROM THE PERU SAL OF THE RECTIFICATION ORDER U/S 200A GENERATED BY TDS (CPC) IT IS NOTICED THAT THE TDS IN 26QB MENTIONS DATE OF FILING OF 'CH ALLAN CUM STATEMENT' AS 5.4.2014 WHEREIN LATE FILING OF 'CHA LLAN CUM STATEMENT' U/S 234E HAS BEEN LEVIED. THE ASSESSEE HAD PURCHASE D THE PROPERTY ON 6.12.2013 I.E. RELEVANT TO THE ASSESSM ENT YEAR 2014-15. SINCE ASSESSEE HAD PURCHASED THE PROPERTY FROM EIGH T SELLERS AND THE PAYMENT TO EACH OF THE SELLER HAS BEEN MADE SEP ARATELY FOR AN AMOUNT OF RS. 41 87 500/- AGGREGATING TO RS. 3 35 0 0 000/- THE ASSESSEE' CONTENTION HAS BEEN THAT IT WAS NOT REQUI RED TO DEDUCT TDS BECAUSE THE PAYMENTS MADE TO EACH SELLER WAS L ESS THAN THE PRESCRIBED LIMIT OF RS.50 LACS AND THEREFORE PROVI SION OF SECTION 194IA WAS NOT APPLICABLE. THE DEMAND HAS BEEN RAISE D BY THE DEPARTMENT U/S 200 IN TERMS OF FAILURE TO COMPLY WI TH SECTION 200A WHICH DEALS WITH THE PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE U/S 200. FIRST OF ALL SUB SECTION 3 OF SECT ION 200 PROVIDES THAT THE PERSON DEDUCTING ANY SUM IN ACCORDANCE WIT H PROVISION OF CHAPTER XVII SHALL AFTER PAYING THE TAX DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME PREP ARE SUCH STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED. PRO VISION OF SECTION 200A PROVIDES THAT WHERE THE STATEMENT OF TAX DEDUC TION AT SOURCE HAS BEEN MADE BY THE PERSON DEDUCTING ANY SUM U/S 2 00 THEN SUCH STATEMENT SHALL BE PROCESSED IN THE MANNER GIV EN THEREIN. CLAUSE (C) OF SECTION 200A HAS BEEN SUBSTITUTED BY THE FINANCE ACT 2015 W.E.F. 1.6.2015 WHICH READS AS UNDER:- '(C) THE FEE IF ANY SHALL BE COMPUTED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 234E;' 6.1. FEE FOR DEFAULT U/S 234E PROVIDES THAT WHEN A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED U/S 200(3) THEN THAT PERSON SHALL BE LI ABLE TO PAY FEE IN THE MANNER PROVIDED THEREIN. THUS FEE U/S 234E IS LEVIABLE IF THE STATEMENT IS NOT FILED AS PRESCRIBED U/S 200(3) WHI CH IN TURN 12 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 PROVIDES THAT THE STATEMENT TO BE FILED AFTER THE P AYMENT OF TAX TO THE PRESCRIBED AUTHORITY. THE RELEVANT RULE 31A(4A) PRO VIDES THAT FOR FILING OF THE 'CHALLAN CUM STATEMENT' WITHIN SEVEN DAYS FROM THE DATE OF DEDUCTION. NOW HERE IN THIS CASE THE DEMAND HAS BEEN RAISED PURELY ON THE GROUND THAT STATEMENT HAS NOT BEEN FU RNISHED FOR THE TAX DEDUCTION AT SOURCE. AS STATED ABOVE THE ASSES SEE HAS DULY DEPOSITED THE TAX NOT AT THE TIME OF PURCHASE ALBEI T ON 5.4.2014 AND ON THE SAME DATE STATEMENT HAS ALSO BEEN FILED. TH E RELEVANT PROVISION OF SECTION 200(3) READ WITH RULE 31A (4A) ONLY REFERS TO FILING OF 'CHALLAN CUM STATEMENT' AFTER THE TAX HAS BEEN PAID. THE WORD 'CHALLAN' IN THE SAID RULE INDICATES THAT THE TAX MUST STAND PAID AND THAT IS HOW FORM 26QB IS GENERATED. THUS HERE IN THIS CASE IT CANNOT BE HELD THAT THERE IS ANY VIOLATION OF SECTION 200(3). IN ANY CASE THE LEVY OF FEE U/S 200A IN ACCORDANCE WI TH THE PROVISION OF SECTION 234E HAS COME INTO THE STATUTE W.E.F. 1. 6.2015. SINCE THE CHALLAN AND STATEMENT HAS BEEN FILED MUCH PRIOR TO THIS DATE THEREFORE NO SUCH TAX CAN BE LEVIED U/S 200A. THIS HAS BEEN CLARIFIED AND HELD BY HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS VS. UNION OF INDIA REPORTED IN (2016) 289 CTR 0602 WHEREIN THE LORDSHIP HAD MADE FOLLOWING O BSERVATIONS :- '14. WE MAY NOW DEAL WITH THE CONTENTIONS RAISED BY THE LEARNED COUNSEL FOR THE APPELLANTS. THE FIRST CONTE NTION FOR ASSAILING THE LEGALITY AND VALIDITY OF THE INTIMATI ON UNDER SECTION 200A WAS THAT THE PROVISION OF SECTION 200 A(1)(C) (D) AND (F) HAVE COME INTO FORCE ONLY WITH EFFECT FROM 1.6.2015 AND HENCE THERE WAS NO AUTHORITY OR COMPETENCE OR JURISDICTION ON THE PART OF THE CONCERNED OFFICER O R THE DEPARTMENT TO COMPUTE AND DETERMINE THE FEE UNDER S ECTION 234E IN RESPECT OF THE ASSESSMENT YEAR OF THE EARLI ER PERIOD AND THE RETURN FILED FOR THE SAID RESPECTIVE ASSESS MENT YEARS NAMELY ALL ASSESSMENT YEARS AND THE RETURNS PRIOR T O 1.6.2015. IT WAS SUBMITTED THAT WHEN NO EXPRESS AU THORITY WAS CONFERRED BY THE STATUTE UNDER SECTION 200A PRI OR TO 1.6.2015 FOR COMPUTATION OF ANY FEE UNDER SECTION 2 34E NOR THE DETERMINATION THEREOF THE DEMAND OR THE INTIMA TION FOR THE PREVIOUS PERIOD OR PREVIOUS YEAR PRIOR TO 1.6.2015 COULD NOT HAVE BEEN MADE.' 7. THUS WE HOLD THAT NO FEE WAS LEVIABLE TO THE AS SESSEE U/S 234E IN VIOLATION OF SECTION 200(3) BECAUSE ASSESSEE HA D FURNISHED THE STATEMENT IMMEDIATELY AFTER DEPOSITING ALL THE TAX WITHOUT ANY DELAY. ACCORDINGLY THE DEMAND ON ACCOUNT OF 234E I S CANCELLED. 8. SIMILARLY INTEREST U/S 220(2) CANNOT BE LEVIED W HEN FEE U/S 234E ITSELF IS NOT LEVIABLE. IN SO FAR AS CHARGING OF IN TEREST U/S 201(IA) THE SAME CANNOT BE CHARGED AS ADMITTEDLY NO ORDER U/S 2 01(1) HAS BEEN PASSED HOLDING THE ASSESSEE TO BE 'ASSESSEE IN DEFA ULT' AND THEREFORE SUCH AN INTEREST IS ALSO DELETED. 13 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 11. NOW COMING TO THE FACTS OF THE PRESENT CASE BEF ORE US THE ASSESSEE UDIT JAIN HAD DEDUCTED TAX AT SOURCE U/S 195 OF THE ACT AGAINST PURCHASE OF PROPERTY. THE TAX WAS DEDUCTED AT 18.05.2015 AND WAS EVEN PAID ON 18.05.2015 THOUGH THE RETURN IN F ORM NO.27A WAS FILED ON 23.06.2016. WE HOLD THAT SINCE THE PERIOD UNDER CONSIDERATION IS FIRST QUARTER OF FINANCIAL YEAR 2015-16 I.E. PRI OR TO THE AMENDMENT TO SECTION 200A(1) OF THE ACT WHEREIN CLAUSE (C) WAS I NSERTED W.E.F. 01.06.2015 AND SINCE THE ASSESSEE HAD ALREADY DEPOS ITED THE TAX DEDUCTED AT SOURCE ON THE SAME DAY OF DEDUCTION T HERE WAS REASONABLE CAUSE IN THE HANDS OF THE ASSESSEE IN NOT DEPOSITI NG THE RETURN IN FORM NO.27A AND THE SAID DEFAULT NEEDS TO BE CONDONED. EVEN OTHERWISE FOLLOWING THE RATIO LAID DOWN IN THE DECISIONS REND ERED TO IN THE PARAS ABOVE THE JURISDICTIONAL ISSUE OF EXERCISE OF POWE R BY THE ASSESSING OFFICER IN CHARGING LATE FILING FEE U/S 234E OF THE ACT SUFFERS FROM INFIRMITY AS CLAUSE (C) TO SECTION 200(A)(1) OF THE ACT HAS BEEN MADE APPLICABLE SPECIFICALLY FROM THE DATE FROM 01.06.20 15. SINCE THE PERIOD OF DEFAULT WAS BEFORE THE SAID DATE I.E. 01.06.2015 THERE IS NO MERIT IN CHARGING LATE FILING FEE U/S 234E OF THE ACT. AS W E HOLD THAT NO LATE FILING FEE IS TO BE CHARGED THEN CONSEQUENT INTEREST CHAR GED U/S 220(2) OF THE ACT ALSO DO NOT SURVIVE. 12. IN ITA NO.5989/DEL/2017 THE ASSESSEE HAS BEEN HELD TO BE IN DEFAULT FOR NOT DEPOSITING THE STATEMENT FOR THIRD QUARTER IN FORM NO.26Q BY THE DUE DATE AND THERE BEING A DELAY OF 136 DAYS PRIOR TO 01.06.2015. EVEN IN ITA NO.5990/DEL/2017 THE DEFAULT ALLEGED B Y THE AUTHORITIES 14 I TA NOS.5386 5989 & 5990/DEL/2017 ASSESSMENT YEARS: 2016-17 & 2013-14 BELOW IS SAME. APPLYING THE SAME PARITY OF REASON ING AS IN THE CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL DOBI BK VS D CIT (SUPRA) AND OTHER CASES WE HOLD THAT THERE IS NO MERIT IN THE ORDERS OF AUTHORITIES BELOW IN CHARGING LATE FILING FEE U/S 234E OF THE A CT. THE SAME IS CANCELLED AND GROUND OF APPEAL RAISED BY ASSESSEE I S ALLOWED. 13. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH DAY OF NOVEMBER 2019. SD/- SD/- (R.K.PANDA) (SUSHMA CHOWL A) %! %! %! %! /ACCOUNTANT MEMBER ! ! ! ! /JUDICIAL MEMBER / DATED : 29 TH NOVEMBER 2019 . * AMIT KUMAR * *.343.5 COPY OF THE ORDER IS FORWARDED TO : 1. () / THE APPELLANT 2. *+() / THE RESPONDENT 3. 6 7 8 / THE CIT(A) 4. 9 6 / THE PR. CIT 5. 6. 3:;*. / DR ITAT DELHI ;'<5 GUARD FILE. / BY ORDER +3.*. // TRUE COPY // >!? ASSISTANT REGISTRAR ITAT DELHI