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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri George George K, JM & Shri Laxmi Prasad Sahu, AM
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN Before Shri George George K, JM & Shri Laxmi Prasad Sahu, AM ITA No.196/Coch/2021 : Asst.Year 2014-2015 Q-4 ITA No.218/Coch/2021 : Asst.Year 2015-2016 Q-1 ITA No.219/Coch/2021 : Asst.Year 2015-2016 Q-2 M/s.Corporation Engineer The Income Tax Officer, LSGD, Corporation of Calicut Ward TDS v. Beach Post Office Kozhikode. Kozhikode – 673 032. PAN : AAALS4147A (Appellant) (Respondent) Appellant by : Sri.Anand Kumar V.K., Advocate Respondent by : Smt.J.M.Jamunna Devi, Sr.DR Date of Pronouncement : 30.06.2022 Date of Hearing : 28.06.2022 O R D E R Per George George K, JM : These three appeals at the instance of the assessee are directed against three different orders of the CIT(A), all dated 06.05.2021. The relevant assessment years are 2014-2015 and 2015-2016. Since identical issues are involved in these appeals, they were heard together and are being disposed of by this consolidated order.
The solitary issue raised in all these appeals is whether the CIT(A) has erred in confirming the Assessing Officer’s order u/s 200A of the I.T.Act, wherein he levied late fees u/s 234E of the I.T.Act for various quarters.
The brief facts of the case are as follows:
2 ITA No.196/Coch/2021 & Ors. M/s.Corporation Engineer. For the assessment years under consideration the assessee has filed TDS returns in Form No.26Q, belatedly. The Assessing Officer levied fee and interest u/s 234E r.w.s. 200A of the I.T.Act for late filing of TDS returns in Form No.26Q. The details of the same are as follows:-
Sl. Asst.Year Quarter Late fee No. (Rs.) 1. 2014-2015 Q4-26Q 50.140 2. 2015-2016 Q1-26Q 92,360 3. 2015-2016 Q2-26Q 68,100
Aggrieved by the orders of the Assessing Officer, the assessee filed appeals before the first appellate authority. The CIT(A) confirmed the A.O.’s orders for levying fees u/s 234E of the I.T.Act. The CIT(A) relied on the judgment of the Hon’ble Kerala High Court in the case of Sree Narayana Guru Smaraka Sangam Upper Primary School v. Union of India and Others reported in (2017) 392 ITR 457 (Ker.) and the judgment of the Hon’ble Bombay High Court in the case of Shri Rashmikantr Kundalia and Others v. Union of India reported in 373 ITR 268 (Bom.).
Aggrieved by the orders of the CIT(A), the assessee has filed these appeals before the Tribunal. The learned AR submitted that the issue raised is squarely covered in favour of the assessee by the following judicial pronouncements:-
(i) The judgment of the Hon’ble Kerala High Court in the case of Olari Little Flower Kuries (P.) Ltd. v. UOI reported in (2022) 440 ITR 26 (Ker.)
3 ITA No.196/Coch/2021 & Ors. M/s.Corporation Engineer. (ii) The Hon’ble Kerala High Court judgment in the case of M/s.Sarala Memorial Hospital v. Union of India & The Income Tax Officer (TDS) [WP(C) No.37775 of 2018 of 18th December, 2018] (iii) The judgment of the Hon’ble Kerala High Court in the case of Sanjeev Mathew & Co. v. ITO (TDS) (judgment dated 30.11.2021) (iv) The judgment of the Hon’ble Kerala High Court in the case of Headmaster, Government Upper Primary School v. ITO (TDS) (judgment dated 18.05.2022) (v) The order of the Cochin Bench of the Tribunal in the case of Travels Trails India Pvt. Ltd. V. ACIT TDS, Trivandrum, [ITA No168/Coch/2020 dated 10th June, 2020] (vi) The order of the Cochin Bench of the Tribunal in the case of Sri.Sabir Ali v. ACIT in ITA No.200/Coch/2021 & Ors (order dated 20.05.2022)
The learned Departmental Representative relied on the orders of the CIT(A).
We have heard rival submissions and perused the material on record. The Assessing Officer cannot make any adjustment other than one prescribed in section 200A of the Act. Prior to 01.06.2015, there was no enabling provision in section 200A of the Act for making adjustment in respect of statement filed by the assessee with regard to tax deducted at source by levying fees u/s 234E of the Act. The Parliament for the first time enabled the Assessing Officer to make adjustment by levying fees u/s 234E of the Act with effect from 01.06.2015. The Hon’ble jurisdictional High Court in the case
4 ITA No.196/Coch/2021 & Ors. M/s.Corporation Engineer. of Olari Little Flower Kuries (P.) Ltd. v. Union of India reported in (2022) 440 ITR 26 (Ker.), has held that since provision of section 200A of the I.T.Act was amended to enable computation of fee payable u/s 234E of the I.T.Act at the time of processing of return and said amendment came into effect from 01.06.2015 (in view of CBDT Circular No.19 of 2015 dated 17.11.2015) intimations issued u/s 200A of the I.T.Act dealing with fee for belated filing of TDS returns for the period prior to 01.06.2015 were invalid and were to be set aside. Therefore, going by the dictum laid down by the Hon’ble jurisdictional High Court judgment in the case of Olari Little Flower Kuries (P.) Ltd. v. Union of India (supra), the levy of late fee for the various quarters for financial years 2013-2014 to 2014-2015 cannot be sustained in order passed u/s 200A of the I.T.Act, prior to 01.06.2015.
7.1 Before concluding, it is to be mentioned that the CIT(A) had relied on the judgment of the Hon’ble Kerala High Court in the case of Sree Narayana Guru Smaraka Sangam Upper Primary School v. Union of India and Others (supra). The judgment of the Hon’ble High Court was primarily concerned with the constitutional validity of section 234E of the I.T.Act. The Hon’ble Kerala Court was not adjudicating the issue whether the amendment to section 200A of the I.T.Act with effect from 01.06.2015 has retrospective effect or not. As mentioned earlier, the amendment to section 200A of the I.T.Act whether it applicable from 01.06.2015 has been decided in favour of the assessee by the judgment of the
5 ITA No.196/Coch/2021 & Ors. M/s.Corporation Engineer. Hon’ble Kerala High Court in the case of Olari Little Flower Kuries (P.) Ltd. v. Union of India (supra).
In the result, the appeals filed by the assessee are allowed.
Order pronounced on this 30th day of June, 2022.
Sd/- Sd/- (Laxmi Prasad Sahu) (George George K) ACCOUNTANT MEMBER JUDICIAL MEMBER Kochi; Dated : 30th June, 2022. Devadas G* Copy to : 1. The Appellant. 2. The Respondent. 3. The CIT(A) NFAC, Delhi. 4. The CIT, Cochin. 5. The DR, ITAT, Cochin. 6. Guard File. Asst.Registrar/ITAT, Cochin