Subject: DR and perused the material available on record.
Referred Sections:
Section 234E of the Act
Section 200(3) of the Act.
Section 271H(l)(a) of the Act,
Referred Cases / Judgments
Rajesh Kourani vs. Union of India (2017) 83 taxmann.com 137
1 ITA Nos. 2322 & 2323/Del/2016
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `G' NEW DELHI
BEFORE SHRI G. D. AGRAWAL, VICE PRESIDENT
AND
MS SUCHITRA KAMBLE, JUDICIAL MEMBER
I.T.A. No. 2322/DEL/2016 (A.Y 2014-15)
I.T.A. No. 2323/DEL/2016 (A.Y 2014-15)
Kam Air Co. Ltd. Vs DCIT CPC-(TDS)
1-84B, Ground Floor, Ghaziabad
Lajpat Nagar-II
New Delhi
AADCK0451D (RESPONDENT)
(APPELLANT)
Appellant by None
Respondent by Sh. N. K. Bansal, Sr. DR
Date of Hearing 02.04.2019
Date of Pronouncement 07.05.2019
ORDER
PER SUCHITRA KAMBLE, JM
These two appeals are filed by the assessee against the order dated
25/01/2016 passed by CIT-41, New Delhi for Assessment Year 2014-15. As
relates to 3rd Quarter Form 26 Q for Financial Year 2013-14.
2. The grounds of appeal are as under:- I.T.A. No. 2322/DEL/2016
1. "That the appellate order as passed by the Ld. CIT (Appeals) is
bad in law and contrary to the fact of the case.
2. That the Ld. CIT (A) has erred in law and facts of the case by
confirming the addition of Rs. 48,800/- on account of late filing of
TDS Return.
2 ITA Nos. 2322 & 2323/Del/2016
3. That the levy of fee under section 234E of the Act being unjust,
arbitrary, discriminatory, without the authority of Law, is violative
of Article 14, Article 19(l)(g), Article 265 and Article 300A of the
Constitution of India, and causes irreparable loss to the appellant.
4. That the charge of late filing under section 234E of the Act in the
garb of a 'fee' is nothing but a shadow-penalty for the delay in the
filing the statement under section 200(3) of the Act. Section
271H(l)(a) of the Act, already seeks to levy a penalty for very
same 'offence'. It is settled Law that an assessee cannot be
penalized twice for the very same cause of action for the very
same Assessment year. The levy of a 'fee1 under section 234E of
the Act is therefore illegal and contrary to settled judicial
precedents, and is therefore liable to be deleted.
5. That without prejudice to the above submission, it is submitted
that on the facts and circumstances of the case, the appellant
company was prevented by sufficient cause for delay in
submitting the statement u/s 200(3) of the Income Tax Act, 1961
and it is prayed that the fee imposed at Rs 48,800/- u/s 234E of
Income Tax Act kindly be deleted.
6. The appellants further craves leave to rely upon and produce
additional documents and make further submissions, during the
course of hearing."
I.T.A. No. 2323/DEL/2016
"1. That the appellate order as passed by the Ld. CIT (Appeals) is
bad in law and contrary to the fact of the case.
3 ITA Nos. 2322 & 2323/Del/2016
2. That the Ld. CIT (A) has erred in law and facts of the case by
confirming the addition of Rs. 88,760/- on account of late filing of TDS
Return.
3. That the levy of fee under section 234E of the Act being unjust,
arbitrary, discriminatory, without the authority of Law, is violative of
Article 14, Article 19(l)(g), Article 265 and Article 300A of the
Constitution of India, and causes irreparable loss to the appellant.
4. That the charge of late filing under section 234E of the Act in the
garb of a 'fee' is nothing but a shadow-penalty for the delay in the
filing the statement under section 200(3) of the Act. Section 271H(l)(a)
of the Act, already seeks to levy a penalty for very same 'offence'. It is
settled Law that an asses see cannot be penalized twice for the very
same cause of action for the very same Assessment year. The levy of
a 'fee' under section 234E of the Act is therefore illegal and contrary
to settled judicial precedents, and is therefore liable to be deleted.
5. That without prejudice to the above submission, it is submitted
that on the facts and circumstances of the case, the appellant
company was prevented by sufficient cause for delay in submitting
the statement u/s 200(3) of the Income Tax Act, 1961 and it is prayed
that the fee imposed at Rs 88,760/- u/s 234E of Income Tax Act
kindly be deleted.
6. The appellants further craves leave to rely upon and produce
additional documents and make further submissions, during the
course of hearing."
4 ITA Nos. 2322 & 2323/Del/2016
3. At the time of hearing, the assessee has not appeared neither there was
any adjournment application despite notice has been served on 7/3/2019.
Therefore, we are taking up the matter from the records, it can be seen that the
issue involved in the present appeal is relating to levy of late filing fees u/s
234E of the Income Tax Act, for delay in filing of TDS statement as per
intimation u/s 200A of the Income Tax Act. The CIT (A) while deciding the
appeal of the assessee dismissed the appeal of the assessee
4. The Ld. DR relied upon the order of the CIT(A) and submitted that the
levy of late filing fees u/s 234E has been properly levied by the Assessing
Officer.
5. We have heard the Ld. DR and perused the material available on record.
We have gone through The submissions of the revenue and also that of the
submissions of the assessee before the CIT(A). The assessee before the CIT(A)
submitted that the amendment in Section 200(A) (1) from Clause (C) to (e) has
been made for the first time enabling the Assessing Officer to make
adjustment by levying fees u/s 234E of the Act w.e.f. 1/6/2015. This aspect
was not dealt by the CIT(A) instead only relied upon the decisions which has
not dealt with the amended position of Section 200A and effective date of
amendment. It is pertinent to note that on this issue, there are contrary views
one by Hon'ble Gujarat High Court in case of Rajesh Kourani vs. Union of
India (2017) 83 taxmann.com 137 in favour of revenue, and the other of the
Hon'ble Karnataka High Court in case of Fatheraj Singhvi (2016) 73
taxmann.com 252 in favour of the assessee. It is settled law that when two
views are possible, the view in favour of the assessee is to be adopted.
Therefore, following the decision of the Hon'ble Karnataka High Court in case of
Fatheraj Singhvi (supra), we hold that the levy of fee under Section 234E prior
to 1st June, 2015 was not sustainable. Accordingly, we delete the penalty order
5 ITA Nos. 2322 & 2323/Del/2016
and allow the appeals of the assessee as both the appeals are on identical
facts.
6. In result, both the appeals of the assessee are allowed.
Order pronounced in the Open Court on 07th May, 2019.
Sd/- Sd/-
(G. D. AGRAWAL) (SUCHITRA KAMBLE)
VICE PRESIDENT JUDICIAL MEMBER
Dated: 07/05/2019
R. Naheed *
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
6 ITA Nos. 2322 & 2323/Del/2016
Date of dictation 02.04.2019
Date on which the typed draft is placed before the 02.04.2019
dictating Member
Date on which the typed draft is placed before the
Other Member
Date on which the approved draft comes to the Sr.
PS/PS
Date on which the fair order is placed before the
Dictating Member for pronouncement
Date on which the fair order comes back to the Sr. 07.05.2019
PS/PS
Date on which the final order is uploaded on the 07.05.2019
website of ITAT
Date on which the file goes to the Bench Clerk 07.05.2019
Date on which the file goes to the Head Clerk
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