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TMI Blog2018 (1) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... S S Godara JM Rupesh R Shah for the Appellant Mudit Nagpal for the Respondent ORDER Per Pramod Kumar, AM 1. By way of this appeal, the assessee-appellant has challenged correctness of the order dated 4th September 2015 passed by the by the CIT(A)-8, Ahmedabad, in the matter of levy of late filing fees under section 234E, in the course of processing under section 200A of the Income-tax Act, 1961, for the assessment year 2014-15. 2. The grievances raised by the assessee are as follows:- 1. The ld. CIT(A)-8, Ahmedabad has erred in law and on the facts of the case in confirming the action of DCIT, TDS, CPC, Ghaziabad for levy of late filing fee u/s 234E through the order of intimation u/s 200A of IT Act, 1961 before 01.06.2015 without jurisdiction and not permissible either in law or on fact. The present proceedings, therefore, are required to be quashed. 2. The ld. CIT(A)-8, Ahmedabad has erred in law and on the facts of the case in confirming the action of ld. DCIT, TDS, CPC, Ghaziabad while passing the orders without properly appreciating the fact and that she further erred in grossly ignoring various submissions, explanations and information su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India [WP (C) 31498/2013(J)], Hon'ble Karanataka High Court in the case of Adithya Bizor P Solutions Vs Union of India [WP No. 6918- 6938/2014(T-IT), Hon'ble Rajasthan High Court in the case of Om Prakash Dhoot Vs Union of India [WP No. 1981 of 2014] and of Hon'ble Bombay High Court in the case of Rashmikant Kundalia Vs Union of India [WP No. 771 of 2014], granting stay on the demands raised in respect of fees under section 234E. The full text of these decisions were not produced before us. However, as admittedly there are no orders from the Hon'ble Courts above retraining us from our adjudication on merits in respect of the issues in this appeal, and as, in our humble understanding, this appeal requires adjudication on a very short legal issue, within a narrow compass of material facts, we are proceeding to dispose of this appeal on merits. 5. We may produce, for ready reference, section 234E of the Act, which was inserted by the Finance Act 2012 and was brought into effect from 1st July 2012. This statutory provision is as follows: 234E. Fee for defaults in furnishing statements (1) Without prejudice to the provisions of the Act, where a person f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination under clause (c) shall be granted to the deductor: Provided that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the statement is filed. Explanation : For the purposes of this sub-section, an incorrect claim apparent from any information in the statement shall mean a claim, on the basis of an entry, in the statement- (i) of an item, which is inconsistent with another entry of the same or some other item in such statement; (ii) in respect of rate of deduction of tax at source, where such rate is not in accordance with the provisions of this Act; (2) For the purposes of processing of statements under sub-section (1), the Board may make a scheme for centralised processing of statements of tax deducted at source to expeditiously determine the tax payable by, or the refund due to, the deductor as required under the said subsection. 7. By way of Finance Act 2015, and with effect from 1st June 2015, there is an amendment inSection 200A and this amendment, as stated in the Finance Act 2015, is as follows: In section 200A of the Income-tax Act, in sub-section (1), for cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scope of permissible adjustments contemplated under section 200A. This intimation is an appealable order under section 246A(a), and, therefore, the CIT(A) ought to have examined legality of the adjustment made under this intimation in the light of the scope of the section 200A. Learned CIT(A) has not done so. He has justified the levy of fees on the basis of the provisions of Section 234E. That is not the issue here. The issue is whether such a levy could be effected in the course of intimation under section 200A. The answer is clearly in negative. No other provision enabling a demand in respect of this levy has been pointed out to us and it is thus an admitted position that in the absence of the enabling provision under section 200A, no such levy could be effected. As intimation under section 200A, raising a demand or directing a refund to the tax deductor, can only be passed within one year from the end of the financial year within which the related TDS statement is filed, and as the related TDS statement was filed on 19th February 2014, such a levy could only have been made at best within 31st March 2015. That time has already elapsed and the defect is thus not curable even a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our country, it is necessary for each lower tier , including the High Court, to accept loyally the decision of the higher tiers . It is inevitable in hierarchical system of Courts that there are decisions of the Supreme appellate Tribunal which do not attract the unanimous approval of all members of the judiciary... But the judicial system only works if someone is allowed to have the last word, and that last word, once spoken, is loyally accepted. ...The better wisdom of the Court below must yield to the higher wisdom of the Court above. That is the strength of the hierarchical judicial system. 6. We wish and hope that learned CIT(A) takes note of these observations of Hon ble Supreme Court and permits her better wisdom to yield the higher wisdom of the Income Tax Appellate Tribunal, which is placed higher in the judicial hierarchy vis-a-vis the CIT(A). 7. Having said that, we may also add that the reasoning of the learned CIT(A) is based on the proposition that the amendment brought about by the Finance Act, 2015 is a curative amendment and therefore, it is retrospective in effect. In coming to this conclusion, she has been guided by the decision in the case of Rajeev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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