HI TECHNO CONTROL SYSTEM PVT LTD,DOMBIVILI vs. DS COMMISSIONER OF INCOME TAX (APPEAL), MUMBAI

The present appeal of assessee in ITA 1525/MUM/2022, in first round before the ITAT Mumbai was disposed of vide order dated 15/11/2022, however, the matter has been recalled, on the request of the revenue by filing of Miscellaneous Application, raising the ground that there is a mistake apparent on record within the meaning of section 254(2) of the act, that the impugned order u/s 272A(2)(K) dated 19/02/2020, challenged by the assessee before the Ld CIT(A) was not in existence, However the appeal of assessee was decided by the Ld CIT(A) and dismissed the same. In this regard a report is submitted by the Ld. Income Tax Officer, TDS Ward, Kalyan dated 18.04.2024 along with intimation u/s 154 dated 30/03/2017 and Intimation U/s 200A/206CB of the even date imposing late fee on the assessee, wherein the factual position has been brought on record that the ITO, Ward 1(5) Kalyan has not issued the so- called order u/s.272A(2)(K) dated 19/02/2020. For the sake of completeness report of A.O dated 18.04.2024 is extracted, hereunder:

The aforesaid facts as per report of AO, were confronted to the assessee, but was failed to rebut with any plausible explanation, accordingly, the MA filed by the revenue in MA No 530/Mum/2023 was allowed and the matter recalled for fresh adjudication.

On the present date of hearing, before us, none appeared on behalf of the assessee, which is noticed to be the assessee’s persistent conduct, in previous several hearings, therefore, the matter has been taken up for adjudication, based on material on record and submissions by the Ld. Sr DR.

Having given a thoughtful consideration to the facts on record, submissions by the revenue and jurisprudence relied upon by the assessee. Admittedly, the non-existence of impugned order u/s 272A(2)(K) dated 19/02/2020has been proved by the revenue and such fact could not be invalidated by the assessee. However, as per intimation u/s 154 and Intimation U/s 200A/206CB both dated 30/03/2017, copies of which are furnished by the revenue before us (extracted supra), it cannot be disputed that a late filing fee of Rs. 85,200/- has been imposed on the assessee for defaults pertaining to Q3 of the FY 2015-16 (AY 2016-17).

Now the issue before us is whether such late fee penalty imposed by the revenue u/s 234E r.w.s. 200A is sustainable or not in the facts and circumstances of the present case. On this issue assessee placed its 8 Hi Techno Control System Pvt. Ltd. Vs. Deputy Commissioner of Income Tax (Appeals), Mumbai ITAT Delhi in the case of Bathline India (P) Ltd in to 9341/Del/2019, wherein the late filing fee u/s 234E r.w.s. 200A was deleted observing that the defaults involved therein pertains to a period prior to 01.06.2015, whereas the relevant provision u/s 200A(1)(c) has been enacted toforce w.e.f. 01.06.2015. Similar is the finding by Hon’ble Karnataka High Court in the case of Fatehraj Singhvi& Ors Vs. UOI 2016 (9) TMI 964, that late filing fee on delay in filing of intimation of payment u/s 234E relating to period of deduction prior to 01.06.2015 was not maintainable.

Coming to facts of present case, the default committed by the assessee pertains to 3Q of FY 2015-16, i.e from 01.10.2015 to 31.12.2015, which falls after the effective date of applicability of the said provision i.e. w.e.f. 01.06.2015, consequently the cases relied by the assessee (supra) for periods prior to 01.06.2015, would not rescue the case of assessee.

In backdrop of the aforesaid observations, we do not find any infirmity in the order of Ld CIT(A) in confirming the late fee-imposed u/s 234E r.w.s. 200A of the act, we thus uphold the same.