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Income Tax Appellate Tribunal, ‘C’ BENCH, KOLKATA
Before: Shri Rajpal Yadav, Vice-(KZ) & Shri Rajesh Kumar
Date of concluding the hearing : February 20, 2023 Date of pronouncing the order : February 21, 2023 O R D E R Per Bench:- The present four appeals are directed at the instance of assessee against the separate orders of ld. Commissioner of 1 , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 30.09.2022 passed for A.Ys. 2013-14, 2014-15, 2015-16 & 2016-17.
The facts on all vital points are common therefore, for the facility of reference, we take the facts primarily from A.Y. 2013- 14.
We take note the grounds of appeal raised by the assessee, which read as under:-
(1) For that the orders passed by the lower authorities are arbitrary, erroneous, without proper reasons, invalid and bad-in-law, to the extent to which they are prejudicial to the interests of the appellant.
(2) For that in the facts and circumstances of the case the order passed u/s 234E charging late fee is bad-in- law since prior to 30.06.2015 there was no applicability of provision of Sec.234E of the Act.
(3) For that the CIT (A) ought not to have alleged that the appellant has misrepresented the facts in respect of delay in filing of the appeal and consequently dismissing the appeal instead should have allowed an opportunity to explain the delay in filing of the appeal by the appellant.
, 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das (4) For that the CIT (A) erred in holding that the order dated 17.12.2019 passed by the CPC was served on 17.12.2019 itself.
(5) For that the CIT (A) erred in dismissing the appeal of the appellant by holding that the appeal submitted on 03.03.2020 is not in time.
(6) For that the CIT (A) ought to have held that when prior to 30.06.2015 no late fee is leviable then in that case the fee charged u/s 234E of the Act is wrong and bad-in-law and the appellant cannot be fastened with such liability.
(7) For that the appellant craves leave to amend, alter, modify, substitute, add to, abridge and/or rescind any or all of the above grounds.
Brief facts as emerging out from the order of the ld. CIT(Appeals) are that an order under section 201(1A) of the Income Tax Act for A.Y. 2012-13 was passed by the ITO (TDS) on 11.09.2013, which is later on corrected by TDS, CPC, Ghaziabad on 17.12.2019. Similarly in A.Y. 2014-15, original order was passed by the ITO (TDS), Kolkata on 11.11.2016. The assessee has filed an appeal against such an order. However, ld. CIT(Appeals) after noticing the facts dismissed the appeal being time-barred. The finding of the ld. CIT (Appeals) in A.Y. 2013-14 reads as under:- , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das
The ld. Counsel for the assessee submitted that if the appeals were time-barred, then ld. CIT(Appeals) ought to have given an opportunity to file application for condonation of delay, but ld. CIT(Appeals) did not provide such an opportunity. In his second-fold of submission, he contended that prior to 1st June, 2015, there was no provision in Section 200A to make 6 , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das adjustment for levying a fee under section 234E of the Income Tax Act. The levies made by the ld. Assessing Officer prior to 01.06.2015 are being quashed across India by the Tribunal, which has been upheld by the Hon’ble High Courts. The ld. Counsel for the assessee pointed out that though Hon’ble Gujarat High Court in the case of Rajesh Kourani –vs.- Union of India reported in (2017) 83 taxmann.com 137 (Guj.) is against the assessee, but even after taking cognizance of the judgment, other High Courts are in favour of the assessee. He placed on record the judgment of ITAT, Kolkata in the case of M/s. Passport Jeans Pvt. Limited –vs.- DCIT, CPC rendered in ITA No. 575/KOL/2021. According to the ld. Counsel, this judgment was pronounced by the ITAT on 18.05.2022 and the Hon’ble Tribunal put reliance upon the judgment of Hon’ble Karnataka High Court in the case of Fatehraj Singhvi-vs.- Union of India. Hence, in view of the decision of the Hon’ble Karnataka High Court coupled with the view taken by the Coordinate Bench, the levy of fee under section 234E on account of late submission of TDS form should be deleted.
On the other hand, ld. D.R. relied upon the orders of Revenue Authorities.
We have gone through the record carefully. Before adverting to the arguments raised by the ld. Counsel for the assessee, we deem it appropriate to take note of the affidavit submitted by the assessee Shri Goutam Chandra Das before the Tribunal and such affidavit reads as under:- 7 , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das
At this stage, we deem it appropriate to take note of the dates when original processing was done by the ITO (TDS), CPC, 10 , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das whereby levies under section 234E were worked out. In this connection, we have perused the orders annexed by the ld. Counsel for the assessee. The dates contained in these orders read as under:- The details of original orders are Assessment Year: 2013-14 Quarter 4 11.09.2013 Quarter 3 17.09.2015 Quarter 2 29.08.2016
Assessment Year: 2014-15 Quarter 1 11.11.2016 Quarter 2 12.11.2016 Assessment Year: 2015-16 Quarter 3 28.12.2015 Quarter 4 31.08.2015 Assessment Year: 2016-17 Quarter 1 11.08.2016
A perusal of the above dates would indicate that in A.Y. 2013-14, first order was passed on 11.09.2013. The assessee has not placed on record exact information as to when the processing for the first time was done in all these years. But these dates have been carved out from the orders annexed by the assessee after mentioning these dates. The proforma of Centralized Processing Cell has narration namely, , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das “Details of maximum 2 latest processed correction statement(s)” will be displayed. For details of other correction statement(s), if any, refer prior intimations sent by TDS, CPC”. It means the assessee ought to have placed on record the first processing intimation sent by the ITO(TDS), CPC. The limitation is to be counted from that day. The assessee has not challenged those orders before any of the authority. He has not filed any application under section 154 before the ITO (TDS) pointing out apparent error in his processing while levy was worked out upon the assessee. As far as the judgment relied upon by the ld. Counsel for the assessee is concerned, in this judgment, it has been propounded that prior to 1st June, 2015, there was no machinery provision provided under section 200A of the Income Tax Act for making such an adjustment while processing the TDS statement of the assessee and, therefore, all these levies were deleted. But after 1st June, 2015, a specific explanation has been appended in section 200A of the Act. A perusal of the above details would indicate that except Quarter 4 in A.Y. 2013-14, all other statements annexed by the assessee are after 1st June, 2015. Thus the judgment is not applicable on these facts. Therefore, for two reasons, we do not find any merit in all these appeals:- (a) The original levies imposed upon the assessee by processing its TDS returns have not been challenged. , 679, 680 & 681/KOL/2022 Assessment Years: 2013-2014 to 2016-2017 Goutam Chandra Das (b) The limitation is to be counted from the orders passed on the dates extracted supra and not from the dates 17.12.2019 when the assessee has ascertained the liability to pay from the processing unit. Even from 17.12.2019, the appeals were not filed well in time before the ld. CIT(Appeals) and they were time-barred, though in our mind, it is not a very relevant issue because original orders were not challenged by the assessee and simply for that reason, these appeals are devoid of any merit, even if for sake of arguments, it is to be assumed that orders have been passed in the year 2015 and 2016 extracted supra, then also they were passed well within the jurisdiction by the ITO, CPC and no assistance can be drawn from the case laws cited by the ld. Counsel for the assessee.