RAJOURI DEVELOPMENT AUTHORITY ,RAJOURI vs. INCOME TAX OFFICER ( TDS), JAMMU

Per Dr. M. L. Meena, AM:

Both the appeals have been filed by the assessee against the order of the Ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi even dated 27.04.2023 in respect of Assessment Years: 2013-14 & 2014-15.

2 ITA Nos. 185 & 186/Asr/2023 Rajouri Development Authority v. ITO 2. The assessee has raised the following common grounds of appeal:

“1. In law and in facts and circumstances of the appellant's case, the learned Commissioner of Income Tax (Appeals) has grossly erred in justifying the action of learned jurisdictional Assessing Officer in rejecting rectification application filed by the appellant, by wrongly holding that the issue raised in rectification application cannot be treated as mistake apparent from record. 2. In law and in facts and circumstances of the appellant's case, the learned Commissioner of Income Tax (Appeals) has grossly erred in dismissing the issue of levy of fee u/s 234E of the Income Tax Act, 1961 without any discussion on merits or any other aspect. 3. The learned Commissioner of Income Tax (Appeals) has erred in law by considering form over substance, which has inter alia resulted in non- consideration of judgment of the jurisdictional Tribunal. 4. The learned Commissioner of Income Tax (Appeals) has erred in law by considering form over substance, thereby inter alia indirectly upholding the wrongful processing of TDS returns beyond the limitation specified under proviso to section 200A of the Income Tax Act, 1961, which otherwise make intimation u/s 200A void ab initio. 5. The learned Commissioner of Income Tax (Appeals) has erred on facts of the appellant’s case, as the order is full of presumptions and surmises as well as wrong statement of facts. 6. The appellant craves to leave to add or amend any ground of appeal.”

opportunity of being heard. However, considering the small issue, we

decided to hear the Ld. DR and adjudicate the appeal. The Assessing

Officer has rejected rectification application filed by the appellant, vide the

order passed u/s 154 of the Income Tax Act, 1961 (herein after referred to

3 ITA Nos. 185 & 186/Asr/2023 Rajouri Development Authority v. ITO as “the Act") on 18.03.2020 being not satisfied with the submission of the

appellant to its request to waive late filing fee u/s 234E levied in the

intimation orders dated 16.12.2016 in respect of TDS statement in Form 24Q of 3rd & 4th Quarter for F.Y. 2012-13.

appeal u/s 246A of the Act before the CIT(A) who has confirmed the action

of the AO by observing as under:

5.1 The grounds of appeal No.1 raised by the appellant is against the rejection of rectification application u/s 154. In ground no. 2 & 3 raised by the appellant, charging of late fee u/s 234E for filing TDS statement in 24Q for 3rd and 4th Quarter of the F.Y. 2012-13 relevant to A.Y. 2013-14 beyond the prescribed due date.

5.2 have considered the grounds of appeal, gone through the submissions of the appellant. As per the submission of the appellant, the TDS statement in Form-24Q for Q3 & Q4 were filed belatedly on 31.07.2014 and the same were processed electronically by AO, CPC on 16.12.2016 levying late filing fee as per provision of section 234E of the Income Tax Act, 1961. The appellant filed rectification application u/s 154 requesting to delete late filing fee levied u/s 234E. The AO rejected this request of the appellant by passing order dated.18.03.2020. It is observed that the appellant filed TDS statement belatedly for the 3rd and 4th Quarter for F.Y. 2012-13, which also not disputed. The appellant filed rectification application u/s 154 of the Act after a gap of more than 4 years after processing electronically by AO,CPC.

It is clear from the submission that the appellant was aware about the demand raised by the department in the order passed u/s 200A on 16.12.2016 and the appellant chose not to challenge this levy of late filing fee by filing regular appeal. The appellant filed rectification application after the lapse of almost four years. The ground no.1 raised by the appellant is against the action of the AO in rejecting request for rectification of demand raised in respect of late filing fee u/s

4 ITA Nos. 185 & 186/Asr/2023 Rajouri Development Authority v. ITO 234E. The AO is empowered u/s 154 of the Income Tax Act, 1961 to rectify a mistake which is apparent from the record. The appellant appears to have filed the rectification application by relying of various favorable judicial pronouncement. The action of the AO in rejecting rectification application is justified as the issue raised in rectification application can not treated as mistake apparent from record. Therefore, the ground of appeal no.1 raised by the appellant is dismissed.

As regards the other ground of appeals raised by the appellant in respect of levy of late filing fee, it is seen that the aforesaid late filing fee u/s 234E was levied in the intimation u/s 200 A(1) passed by the AO,CPC on 16.12.2016 and the same were sent from CPC on Registered email id. It is also an admitted fact that the appellant had been electronically filing TDS returns for subsequent quarters also and hence was accessing the details of its TDS statements even thereafter. It is clear that a conscious and a duly considered decision was taken at the relevant point of time for not filing appeals against the intimation u/s200A dated 16.12.2016. The appellant should have filed appeal against levy of fee u/s 234E on or before 16.01.2017 as this fee was levied for the first time on 16.12.2016 for delay in filing of regular statement u/s 200(3) of the Act. The appellant has tried to raise this issue of late filing fee u/s 234E by filing rectification application despite knowing the fact that it is not a mistake apparent from record. The appellant is unfairly trying to extent limitation for filing appeal on this issue. Filing an appeal on any issue belatedly on reasoning that favourable order has subsequently been passed, have to be characterized as opportunistic. If this be accepted as such, a large number of appeals would eternally escape the bar of limitation prescribed for filing appeals, thereby, not allowing even a single litigation on a legal issue to ever become final. It is difficult to envisage an intelligible classification between an aggrieved who promptly files an appeal, contests if, secures a decision - and that between an aggrieved who prefers to be quiescent without a sufficient cause. The right to appeal cannot be kept intact and preserved indefinitely in anticipation of a possible decision by a court of law which suits the appellant. That is to say, it is not upto a litigant to constantly review its decision of not filing an appeal, contingent upon the receipt of unforeseeable future decisions on the issue - as the same moves through the appellate/judicial channels.

As the action of the AO in rejecting the rectification application has been upheld and therefore, in view of the above discussion the issue of levy of late filing fee u/s 234E is dismissed without any discussion on merits or on any other aspect.

5 ITA Nos. 185 & 186/Asr/2023 Rajouri Development Authority v. ITO 5. We have heard the Ld. DR, perused the material on record,

impugned order, written submission filed before us. Admittedly, the

disputed late fee u/s 234E was levied in the intimation u/s 200 A(1) passed

by the AO,CPC on 16.12.2016. The appellant filed rectification application

after the lapse of almost four years prescribed as per the provision of Act

for filing rectification application u/s154 of the Act. In our view, the Ld. CIT

(A) has been justified in confirming the action of the AO, in rejecting

request for rectification of demand raised in respect of late filing fee u/s

234E because the AO is not empowered u/s 154 of the Income Tax Act,

1961 to rectify a mistake based on rectification application filed on expiry of

prescribed date which is even if apparent from the record. Accordingly, we

find no infirmity or perversity in the impugned order to the facts on record

and as such, the decision of the Ld CIT(A) in confirming the action of the

AO, is sustained.

In the result, the appeal of the assessee is dismissed. 6.

Order pronounced in the open court on 07.08.2023

Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr.PS*

6 ITA Nos. 185 & 186/Asr/2023 Rajouri Development Authority v. ITO Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T. True Copy By Order