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Income Tax Appellate Tribunal, DELHI BENCH “H”: NEW DELHI
Before: SHRI SHAMIM YAHYA & SHRI ANUBHAV SHARMA
INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “H”: NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA Nos. 1033, 1039, 1041 & 1042/Del/2020 (Assessment Years: 2014-15 & 2013-14) W Serve Technologies Pvt ltd, Vs. ACIT-CPS-TDS, Plot No. 43, Pace City-1, Sec- Ghaziabad 37, Gurgaon (Appellant) (Respondent) PAN: AAACW6483E
Assessee by : None Revenue by: Shri Pradeep Gautam, Sr. DR Date of Hearing 20/10/2022 Date of pronouncement 10/11/2022
O R D E R PER ANUBHAV SHARMA, J. M.: 1. These appeals have been preferred by the Assessee against the order dated 31.05.2019 of Ld Commissioner of Income Tax (Appeals)-41, New Delhi (hereinafter referred as Ld. First Appellate Authority or in short Ld. „FAA‟) in appeal Nos. 25/18-19/CIT(A)-41 07/18-19/CIT(A)-41, 21/18-19/CIT(A)-41, 19/18-19/CIT(A)-41 before it against the order dated 02.04.2018, 16.02.2018, 03.04.2018 and 03.04.2018 passed u/s 154/200A of the Income Tax Act, 1961 (hereinafter referred as „the Act‟) by the ld. AO, DCIT/ACIT, CPC-TDS, Vaishali, Ghaziabad (hereinafter referred as the Ld. AO). 2. Facts of the case are that the assessee filed delayed TDS statement of respective quarters of FY 12-13 and 13-14. Ld. AO -T DS CPC had imposed late fees under section 234E and interest under
section 220 for non-payment of the late fee. The case of assessee is that as per provisions of sec 201(1) an assessee cannot be treated in default and TDS statement cannot be treated as defective due to non-payment of late fees under section 234E, like non-payment of self assessment tax and interest along with return under section 139(1) treats an income tax return as defective under section 139(9). So as per assessee, under Sec 201(2) if a person failed to deposit tax and interest then it shall be a charge upon all the asset of that person, so it also does not cover late fee amount, so it is clear that the intention of the law is not to cover o r recover late fee if not deposited along with TDS statement. The ld CIT(A) however, dismissed the appeal primarily on the ground that there were delay in filing of the appeal as follows:-
ITA No. Days of delay 457 1033/Del/2020 556 1039/Del/2020 563 1041/Del/2020 563 1042/Del/2020
Further, having taking into consideration the effective date of order after rectification Ld. CIT(A) observed that amended provision of section 200A were applicable w.e.f 01.06.2015, and the ld AO has rightly levied late filing fees. 4. The assessee has come in appeal raising following ground of appeal and those in ITA No. 1033/Del/2020 are reproduces:-
“1. The ld CIT(A) erred in upholding the order u/s 154 passed by the ACIT, CPC (TDS), Ghaziabad and thereby confirming the levy of late fee u/s 234E of Rs. 55400/- in the intimation generated u/s 200A passed in respect fo the TDS statement filed in From 24Q for Qarter 1 of Assessment Year 2014-15.
The ld CIT(A) has rejected the present appeal on the surmise that first of all, appeal has been filed against the order u/s 200A which appear to have been passed on 11.01.2017 whereas appellant has mentioned the date of regular order as 02.04.2018 which in fact the date of rectification order u/s 200A, accordingly there is delay in filing of the appeal and appellant has not seek any condonation of delay. Further, the CIT(A) has also decided the issue on merits and hence we have preferred this appeal on these grounds. 3. The ld CIT(A) failed to appreciate that in respect of the TDS statements filed for the period prior to 01.06.2015, the late fee u/s 234E could not have been levied in the intimation order u/s 200A and hence, the levy of late fee in respect of the TDS statement filed in the instant case for Quarter 1 of Assessment Year 2014-15 was not justified in the intimation passed u/s 200A of the Act. 4. Without prejudice to the above ground, it is submitted that TDS has been duly deposited including interest of delayed payment, if any and there was a reasonable cause on the part of the appellant which resulted into delay in filing the TDS statement and therefore, the levy of late fee would result into genuine hardship to the assessee and hence, the same ought to have been deleted on the facts of the case.” 5. Heard and perused the record. 6. On the date of hearing on 20.10.2022 none appeared on behalf of the assessee and record shows that on earlier occasion also none appeared on 18.10.2022 and 19.07.2022. Accordingly, argument of the ld DR were heard and who supported the findings of the ld Tax Authorities below. He also pointed out about the disposal of the other ITA Nos. 1027 to 1032, 1034 to 1038 and 1040/Del/2020 for Assessment Year 2013-14, 2014-15, 2015-16 in assessee‟s own case. 7. The facts of the present appeals in hand are similar to the various appeal of the assessee for Assessment Year 2013-14, 2014- 15 and 2015-16 dismissed by order dated 31.08.2022, where relevant paragraph No. 6 is reproduced below:- “6. We have gone through the submission of the Id. DR. The efforts of the ld. DR, Sh. M. Barnwal are duly appreciated for his Page | 3
detailed analysis and reference to different orders/judgments of various Courts. 7. This issue of levy of late fee U/s 234E has been adjudicated by this tribunal in N number of appeals and has allowed appeals of the assessee holding that fees u/s 234E is not leviable before 01.06.2015 i.e. the date when clause (c) was inserted in section 200A(I) for the computation of said fees at the time of processing. The tribunal relied upon the decision of Hon'ble Karnataka High Court in the case of Fatehraj Singhvi & Others reported in [2016] 289 CTR 602. 8. Similar view has been taken by the Co-ordinate Bench of the ITAT Delhi Bench 'G' in the case of Vkare Bio Sciences Pvt. Ltd. Vs. DCIT(CPC-TDS) in ITA Nos. 2308, 2309 & 2310/Del/2017 vide order dated 30.08.2019. The operative part of the order is reproduced as under: "The facts in brief are that in the order passed u/s 200A of the Act, late filing fee of Rs. 3,000/- u/s 234E of the Act has been levied. It was submitted that levy of fee u/s 234E of the Act can be levied only when there is an enabling provision prescribed u/s 200A of the Act, which has come w.e.f. 1st June, 2015. However Ld. CIT(A) after referring to the judgment of Hon'ble Bombay High Court in the case of Rashmikant Kundalia vs. Union of India and decided the issue against the assessee. 4. Before us Ld. DR has relied upon the judgment of Hon'ble Delhi High Court in the case of Biswajit Das vs Union of India 413 ITR 92 and also judgment of Hon'ble Bombay High Court in the case of Mr. Rashmikant Kundalia vs Union of India and Writ petition No. 771 of 2014 and submitted that the levy of fee u/s 234E of the Act is automatic wherever there is a delay in view of statement of tax at source. 5. After considering the impugned orders we find delay in filing of statement in regard third quarter for the financial year 2014-15. The demand has been raised by the department u/s 200 of the Act in terms of failure to comply with section 200A of the Act which deals with the processing of statement of tax deducted at source u/s 200 of the Act. First of all, sub section 3 of section 200 of the Act provides that the person deducting any sum in accordance with provision of chapter XVII shall after paying the tax deducted to the credit of the Central Government within the prescribed time and prepare such statement for such period as may be prescribed. Provision of section 200A of the Act provides that where the statement of tax deduction at source has been
made by the person deducting any sum u/s 200 of the Act, then such statement shall be processed in the manner given therein. Clause (c) of section 200A of the Act 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 accordance with the provisions of section 234E;" 6. Fee for default u/ s 234E of the Act provides that, when a person fails to deliver or cause to be delivered a statement within the time prescribed u/s 200(3) of the Act, then that person shall be liable to pay fee in the manner provided therein. Thus, fee u/s 234E of the Act is leviable if the statement is not filed as prescribed u/s 200(3) of the Act which in turn provides that the statement to be filed after the payment of tax to the prescribed authority. The relevant rule 31A (4A) provides 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 furnished for the tax deduction at source. The 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 of the Act in accordance with 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 Court made following observations :- "14. We may now deal with the contentions raised by the learned counsel for the appellants. The first contention for assailing the legality and validity of the intimation under Section 200A was that, the provision of Section 200A(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 or the Department to compute and determine the fee under Section 234E in respect of the assessment year of the earlier period and the return filed for the said respective assessment years namely all assessment years and the returns prior to 1.6.2015. It was submitted that, when no express authority was conferred by the statute under Section 200A prior to 1.6.2015 for computation of any fee under Section 234E nor Page | 5
the determination thereof, the demand or the intimation for the previous period or previous year prior to 1.6.2015 could not have been made." 7. The judgment relied upon by the Ld. DR relate to constitutional validity and vires of the provision of section 234E. Nowhere in the judgments Hon'ble Courts have held that the fees u/s 200A read with section 234E shall be levied prior to 1.06.2015, because prior to this date has not prescribed levy of fees u/s 200A. Thus, we hold that no fee was leviable to the assessee u/ s 234E in violation of section 200(3), because assessee had furnished the statement immediately after depositing all the tax without any delay. Accordingly, the demand on account of 234E is cancelled. Accordingly, the appeal of the assessee is allowed." 9. Keeping in view the factual and legal aspects of the cases before us, we don't find reasons adequate to deviate from the ratio laid down by this Tribunal earlier.” 8. In the light of the aforesaid, there is no substance in the grounds of the appeals and therefore same are not sustained. The appeals are dismissed. Order pronounced in the open court on 10/11/2022. -Sd/- -Sd/- (SHAMIM YAHYA) (ANUBHAV SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 10/11/2022 A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi