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Income Tax Appellate Tribunal, “DB”BENCH, JABALPUR
Before: SHRI OM PRAKASH KANT & SHRI PAVAN KUMAR GADALE
O R D E R PER PAVAN KUMAR GADALE JM: These are the five appeals filed by the assessee against the separate orders of the National Faceless Appeal Centre (NFAC)/CIT (A), Delhi passed U/sec 154 and 250 of the Act.
At the time of hearing, the Ld.AR of the assessee submitted that there is a delay in filing the appeals before the Hon’ble Tribunal and filed the applications and affidavits for condonation of delay. Whereas, the facts ,5,6,7 &23/Jab/2023 Administrative Officer Customs & Central Excise, Jabalpur - 2 - mentioned in the applications are reasonable and the Ld.DR has no specific objections. Accordingly, we condone the delay and admit the appeals.
3. Since the issues involved in these appeals are common and identical, hence are clubbed, heard and consolidated order is passed. For the sake of convenience, we shall take up the A.Y.2013-14(Quarter-4) as a lead case and the facts narrated. The assessee has raised the following grounds of appeal:
1. The appellant having TAN No. JBPA02297B is a Central Govt Body/Organization under Central Board of Indirect Taxes and customs, department of Revenue, Ministry of finance.
2. That the Appellant had filed the rectification application U/s 154 of the Income Tax Act, 1961 against the order passed U/s 200A of the Act, which was rejected by the ACIT, CPC TDS, Ghaziabad without looking at the facts of the case and without providing opportunity of hearing.
3. That the appellant has filed. appeal before the Commissioner of Income Tax (Appeals) against the order dated 03.11.2020 & The Learned CIT (Appeals), NFAC rejected the appeal filed by the appellant. The CIT (Appeals) while passing the DIN & order No... ITBA/NFAC/S/250/2022- 23/1046287263(1), dated 13.10.2022 had grossly errored by not taking into considerations the facts of the case and in law. ,5,6,7 &23/Jab/2023 Administrative Officer Customs & Central Excise, Jabalpur - 3 -
4. That the CIT (Appeal), NFAC had passed the impugned order in violation of the Principles of Natural Justice as no opportunity of hearing was granted while passing the impugned order.
That the sub section (3) of the Section 234E of the Act states that it shall be paid before delivering a TDS statement. It means that it shall be paid before delivering TDS a statement. That once the TDS statement has been accepted without late fees and then such late fee cannot be recovered later on. In the view of the above late fee cannot be recovered later on by way of any notice, hence no notice of demand U/s 156 of the Act can be issued.
6 That the provisions of Section 204 of the Act has made the person responsible for Section190 to Section 203AA and Section 285, this phrase does not cover Section 234E, it means no one is responsible for default U/s 234E of the Act. It also clears that if late fees are due but not deposited along with the TDS statement none can be held responsible. to deposit it later on.
7.That Section 200A of the Act does not permit processing of TDS statement for default in payment of late fees, except any arithmetical error or incorrect claim or default in payment of interest any TDS payable or refundable etc. Hence late fees for TDS quarterly statement cannot be recovered by way of processing under Section 200A. Therefore no demand notice cannot be issued under this section, but if issued, the same is illegal & liable to be cancelled. Therefore the order under Section 200A levying late fee U/s 234E after delivering TDS statement is not in accordance with the provisions of the Act. Hence liable to be quashed ,5,6,7 &23/Jab/2023 Administrative Officer Customs & Central Excise, Jabalpur - 4 - 8.That the basic concept behind TDS is, to deposit the tax on the income of deductee as they earns the income therefore deductor/recipient has deposited the tax timely. No such offence has been committed by the Appellant and deducted the TDS and deposited the Tax through Book adjustment. Therefore no late fees can be imposed on the Deductor.
9 That the CIT (Appeal), NFAC had errored while passing the order dated 13.10.2022 while non considering the provisions of Section 200A(1)(c), (d) & (f) of the Act and those provisionscame into force only from 01.06.2015 and therefore the authority issuing intimation 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 1.06.2005.
10.That there are various cases in which Hon'ble Court/Tribunal has allowed the petition/ appeal in favour of assessee for non- levy of late filing charges under Section 234E of the Act for the period prior to June, 2015 in the absence of amendment to Section 200A of the Act, which was brought on statue from 01.06.2015.
That in the case of Sri Fatheraj Singhvi Vs UOI & Others in W.ANo.2663/2015, Hon'ble High Court of Karnataka at Bengaluru held that "when the amendment made under Section 200A of the Act which has come into effect on 01.06.2015 is held to be having prospective effect, no computation of fee for the demand or the intimation for the fee under Section 234E could be made for the TDS deducted for the respective assessment year prior to 01.06.2005. Hence, the demand notices under Section 200A by the respondent- authority for intimation for payment of fee under ,5,6,7 &23/Jab/2023 Administrative Officer Customs & Central Excise, Jabalpur - 5 - Section 234E can be said as without any authority of law and the same are quashed and set aside to that extent."
11 That in the case of M/s Shree Builders Vs UOI & Others in W.P. No.11831/2014, the Hon'ble High Court of MP, Jabalpur Bench allowed the petition in favour of the petitioners.
12.That the various appeal orders passed by the Income Tax Appellate Tribunal are below as under on above subject matter, in which the appeal is allowed to the appellant.
(1) Krishna-Pandurang-Kobnak- Vs-National-Faceless-Appeal- Centre-ITAT-Mumbai (ii) Shivansh-Infraestate-Pvt.- Ltd-Vs-ITAT-Lucknow (iii) Shimas- Network-Pvt. Ltd.-VS-CIT-ITAT-Bangalore (iv) Karnataka-Grameena- Bank-Vs-ACIT-ITAT-Bangalore (V) Indiasoft-Technologies-Pvt.- Ltd.-Vs-ACIT-ITAT-Pune (vi) Thomas-Abraham-Vs-ITO-ITAT-Bangalore (vii) Vivek-J-Thar-Vs-Income- Tax-Officer-ITAT-Mumbai (viii) 1608007816-Puran- Shankar Lal Vishwakarma 87- 89-2019 ITAT-Jabalpur 13.That the CIT (Appeals), NFAC had prima-facie disobeyed the directions given by this Hon'ble Tribunal, not relied upon judgments of this Hon'ble Tribunal, Hon'ble High Courts and violated the principles of judicial discipline as he bound to obey the decisions of the Higher Forums. The CIT (Appeals) without ,5,6,7 &23/Jab/2023 Administrative Officer Customs & Central Excise, Jabalpur - 6 - following the due procedure of law had passed the impugned order. Due to these reasons the impugned order passed by the CIT (Appeals), NFAC leads to errored of justice, arbitrary, illegal and perverse. 14 That, the Appellant is a Government of India and all the payments and receipts are being made through the Consolidated Fund of India. Therefore, it is a revenue neutral situation because the payments from one Government treasure is being made to the another Government treasure 15.The Appellant craves leaves to add any new ground or amend or to modify any of the existing grounds at the time of hearing before this Hon'ble Tribunal.
16.It is, therefore, most humbly and respectfully submitted that this Hon'ble Tribunal may kindly be please to:
1. Set aside the impugnedCIT (Appeal), NFACorder dated 13.10.2022.
2. To grant the relief to the appellant U/s 200A and u/s 154 of the Act imposing late fees U/s 234E has to be cancelled and quashed the impugned order/ demand.
3. Any other relief in the kind discretion
The brief facts of the case are that the assessee has filed the TDS statement for Quarter 4 of F.Y 2012-13 on 10.05.2016 and whereas due date of filing is 05.05.2013. Subsequently it was processed by the CPC on 13.05.2016 levying the late fees u/sec234E of the Act of Rs.1,54,200/- for delay in filling the quarterly TDS statement. Further the ,5,6,7 &23/Jab/2023 Administrative Officer Customs & Central Excise, Jabalpur - 7 - assessee has filed rectification petition u/sec154 of the Act and was rejected vide order dated 3.11.2020.
5. Aggrieved by the rectification order, the assessee has filed an appeal before the CIT(A), whereas the CIT(A) considered the grounds of appeal, statement of facts and submissions but has confirmed the levy of late fees and dismissed the assessee appeal. Aggrieved by the CIT(A) order, the assessee has filed an appeal before the Hon’ble Tribunal.
6. At the time of hearing, the Ld.AR of the assessee submitted that the CIT(A) has erred in confirming the levy of late fee u/sec234E of the Act. The late fee can be charged only after 1.06.2015 and not for the period prior to said date. The present Quartier 4 is in the financial year F.Y.2012-13 and hence no late fee is chargeable and the Ld,AR substantiated the submissions with synopsis, judicial decisions and paper book and prayed for allowing the assessee appeal. Per Contra, the Ld. DR relied on the orders of the CIT(A).
7. We heard the rival submissions and perused the material on record. The sole crux of the disputed issue as envisaged by the Ld. AR that the provisions of levy of late fees u/s 234E of the Act is applicable w.e.f 01.06.2015, where as the ,5,6,7 &23/Jab/2023 Administrative Officer Customs & Central Excise, Jabalpur - 8 - present financial year in this appeal is F.Y.2012-13 which does not fall in the purview of applicability and similar view was considered in the judicial decisions as under:
Olaria Little Flower Kuries P Ltd Vs. Union of India, [2022] 134 taxmann.com 111.
2. Ellora Property Services Pvt Ltd., Vs. TDS CPC, 1760/Mum/2020.
Medical Superintendent Rural Hospital, DOBI BK Vs. DCIT, CPC, [2018] 100 taxmann.com 78.
4. Permanent Magnets Ltd. Vs. DCIT – CPC (TDS), to 6442/Mum/2018.
Additional DIGP Vs. DCIT, [2020] 120 taxmann.com 284, Delhi 5.
We find that the Hon’ble Karnataka High Court in the case of Fatheraj Singhavi Vs Union of India, [2016] 73 taxmann.com 252 has observed and held as under:
“The intimation given in purported exercise of power u/s 200A are in respect of fees u/s 234E for the period prior to 01.06.2015. As such, it is on account of the intimation given making demand of the fees in purported exercise of power u/s 200A, the same has necessitated the appellant original petitioner to challenge the validity of section 234E of the Act. In view of the reasons recorded by us herein above, when the amendment made under section 200A of the Act which has come into effect on 01.06.2015 is held to be having prospective effect, no computation of fee for the demand or the intimation for the fee u/s 234E could be made for the TDS deducted for the respective assessment year prior to 01.06.2015. Hence the demand notices u/s 200A by the respondent authority for intimation for payment of fee u/s 234E can ,5,6,7 &23/Jab/2023 Administrative Officer Customs & Central Excise, Jabalpur - 9 - be said as without any authority of law and the same are quashed and set aside to the extent ”
We find as per the decisions of Hon’ble High Court and Hon’ble Tribunal, the provision of chargeability of late fees is w.e.f 01.06.2015.Therefore the provisions of Sec. 234E of the Act charging late fee is not applicable to the F.Y 2012-13. where the assessee has filed the Form No.24Q. We considering the facts, circumstances, provisions of law and judicial decisions of Honble High court and Honble Tribunal set aside the order of the CIT(A) and direct the Assessing Officer to delete the late fee levied u/s 234E of the Act and allow the grounds of appeal of the assessee in favour of the assessee.
In the result, the appeal filed by the assessee is allowed.
ITA Nos 5, 6, 7 & 23/JAB/2023 A.Y.2013-14(Quarter 2&3)A.Y.2015-16(Quarter1&3).
As the facts and circumstances in these appeals are identical to for theA.Y2013-14(Quarter- 4) (except variance in figures)and the decision rendered in above paragraphs 8 & 9 would apply mutatis mutandis for these appeals also. Accordingly,the orders of the CIT(A) are set aside and direct the Assessing Officer to delete the late ,5,6,7 &23/Jab/2023 Administrative Officer Customs & Central Excise, Jabalpur - 10 - fee levied u/s 234E of the Act and allow the grounds of appeal of the assessee in favour of the assessee.
In the result, the five appeals filed by the assessee are allowed .
Order pronounced in the open court on 18.09.2023.