M/S. Atnk & K Area Armed Forces ... vs The Deputy Commissioner Of Income ...
2023 Latest Caselaw 10814 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
             THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
         THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
                           WP(C) NO. 18868 OF 2023
PETITIONER/S:

             M/S. ATNK & K AREA ARMED FORCES VETERANS CANTEEN,
             17/727, VAZHAKKADAVU ROAD, MANAPULLIKKAVU, PALAKKAD -
             678 013, REPRESENTED BY ITS SENIOR MANAGER, N.
             RADHAKRISHNAN

             BY ADVS.HARISANKAR V. MENON
             MEERA V.MENON; R.SREEJITH
             K.KRISHNA; PARVATHY MENON



RESPONDENT/S:

     1        THE DEPUTY COMMISSIONER OF INCOME TAX,
              TDS RECONCILIATION ANALYSIS AND CORRECTION ENABLING
              SYSTEM, INCOME TAX DEPARTMENT, TDS CPC, AAYKAR BHAVAN,
              SECTOR - 3, VAISHALI, GHAZIABAD, UTTAR PRADESH, PIN - 201010

     2        THE INCOME TAX OFFICER (TDS), AAYKAAR BHAVAN, ENGLISH
              CHURCH ROAD, PALAKKAD, PIN - 678014

             BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT


         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.18868/2023
                                   -2-




                        JUDGMENT

Heard Ms K Krishna learned Counsel for the petitioner

and Mr Christopher Abraham learned Stading Counsel for the

Income Tax Department.

2. The present writ petition under Article 226 of the

Constitution of India has been filed impugning Ext.P6 order

dated 03.03.2023 for the Assessment Year 2018-19 on remand

by the Tribunal wherein the demand of late fee under Section

234E of the Income Tax Act has been assessed at Rs.71,067/-,

[which includes late fee of Rs.47,000/-, interest of Rs.23,500/-

and interest of late payment of Rs.567/-].

3. The petitioner, an Armed Forces Veterans Canteen,

was served with a notice under Section 201 for not filing the W.P.(C) No.18868/2023

quarterly statement for the second quarter of Financial Year

2017-18 in Form 26Q. In fact, the petitioner had deducted and

paid the tax but filed Form 24Q instead of Form 26Q. The said

Form 24Q was rejected. However, the petitioner filed the

correct Form only on 23.06.2018. Therefore, the late fee of

Rs.47,000/- and interest on the payment of the late fee of

Rs.567/- was levied on the petitioner. The petitioner

challenged the said order before the Commissioner of Income

Tax (Appeals), which affirmed the order passed by the

Assessing Authority.

3.1 Thereafter, the petitioner approached the Income

Tax Appellate Tribunal (for short, 'the Tribunal') by filing

I.T.A. No.98/Coch/2022. The Tribunal noted that computer-

generated Form 24Q was filed on 20.10.2017. This Form was

revised and corrected in Form 26Q. Considering the fact that

the quarterly TDS returns were filed on time, and only the W.P.(C) No.18868/2023

Form was incorrectly filed, the Tribunal remanded the matter

back to the Assessing Authority to pass fresh orders in the

light of the observation made in the Order dated 01.07.2022

passed by the Tribunal (Ext.P4).

4. Learned Counsel for the petitioner submits that on

remand, the Assessing Authority, in fact, gave effect to the

order of the Tribunal and assessed 'Nil' demand. However,

subsequently, vide order in Ext.P6, the Assessing Authority has

again levied a late fee of Rs.47,000/-, interest of Rs.23,500/-

and interest of late payment of Rs.567/-. Learned Counsel for

the petitioner submits that the earlier stand of the Assessing

Officer was rejected by the Tribunal. The Tribunal found that

the return for the second quarter of the Financial Year 2017-

18 was filed on time, however, it was in the incorrect Form,

and the said Form was revised. Therefore, it cannot be said

that the petitioner did not file the return on time and that W.P.(C) No.18868/2023

there was no question of levying any late fee. She also submits

that when the petitioner had deposited the tax deducted as

TDS on time, there was no question of levy of any interest.

5. I find substance in the submission of the learned

Counsel for the petitioner. It is not in dispute that the

petitioner had filed the return on time. However, it was not in

the correct Form, and it was revised. Therefore, when the

petitioner had filed the return on time, there is no question of

levying penalty and interest.

The writ petition stands allowed. The impugned order in

Ext.P6 is set aside.

Sd/-

DINESH KUMAR SINGH JUDGE

jjj W.P.(C) No.18868/2023

APPENDIX OF WP(C) 18868/2023

PETITIONER EXHIBITS

Exhibit P1 COPY OF COMPUTER GENERATED ACKNOWLEDGEMENT RECEIPT EVIDENCING FILING OF QUARTERLY STATEMENT FILED BY THE PETITIONER DTD. 20-10-

Exhibit P2 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DTD,. 30-06-2018

Exhibit P3 COPY OF ORDER ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE, DELHI DTD. 06-12-2021

Exhibit P4 COPY OF ORFDER ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI DTD. 01-07-2022

Exhibit P5 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DTD. 07-02-2023

Exhibit P6 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DTD. 03-03-2023