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2018 (6) TMI 352 - AT - Income TaxFees u/s 234E charged in the order passed u/s 154 - Held that - Due to diversified decisions on the issue it is held the issue was a debatable issue and therefore does not qualify as a glaring and obvious mistake apparent from record. The fees, therefore, in any case could not have been charged by rectifying the intimation made u/s 200A of the Act. No fees in any case could have been charged prior to 01.06.2015. Therefore also there was no mistake in the original intimation made in the present case u/s 200A of the Act prior to 01.06.2015, by not charging fees u/s 234E of the Act. And the same could not have been charged now by way of passing an order u/s 154 of the Act. No fees could be charged in the present case u/s 234E in the order passed u/s 154 of the Act.
Issues Involved:
1. Condonation of Delay 2. Charging of Fees for Late Filing of TDS Returns under Section 234E 3. Authority to Charge Fees under Section 234E in an Order Passed under Section 154 4. Requirement of Notice Before Rectification under Section 154 Detailed Analysis: 1. Condonation of Delay: The appeals were delayed by 17 days. The delay was attributed to the lack of legal help in the forest division of the government company involved, as all legal matters were handled by the head office. The Tribunal condoned the delay, considering it unintentional and beyond the control of the assessee, and the short duration of the delay. The Ld. DR did not object to the same. 2. Charging of Fees for Late Filing of TDS Returns under Section 234E: The core issue in all appeals was the charging of fees for late filing of TDS returns as per Section 234E. The assessee argued against the charging of these fees, particularly in the context of orders passed under Section 154. The CIT(A) upheld the fees charged, following the Gujarat High Court's decision in Rajesh Kourani Vs. Union of India, which allowed the demand for late filing fees under Section 234E even prior to the amendment effective from 01.06.2015. 3. Authority to Charge Fees under Section 234E in an Order Passed under Section 154: The assessee contended that the AO had no power to charge fees under Section 234E in an order passed under Section 154, especially since the original processing of the TDS return and consequent intimation under Section 200A occurred before 01.06.2015, when there was no enabling provision for such charges. The Tribunal noted that Section 154 allows rectification of only apparent and glaring mistakes, which was not the case here due to conflicting High Court decisions. Thus, the charge of fees under Section 234E in an order passed under Section 154 was deemed impermissible. 4. Requirement of Notice Before Rectification under Section 154: The assessee argued that the rectification order under Section 154 was passed without affording an opportunity of hearing, which was procedurally incorrect. The Tribunal found that the order under Section 154 was passed without issuing a show-cause notice to the assessee, which was necessary as per procedural fairness. Conclusion: The Tribunal concluded that no fees under Section 234E could be charged in the order passed under Section 154, especially for periods prior to 01.06.2015. This conclusion was supported by the Chandigarh Bench of the ITAT's recent decision and the principle that in case of conflicting views, the one favoring the assessee should be adopted. Consequently, the fees charged under Section 234E were deleted, and the appeal was partly allowed. The Tribunal did not address the remaining grounds on the merits of the issue, as the legal ground was sufficient for the decision. The appeal was pronounced in the open court, and all appeals of the assessee were partly allowed.
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