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TMI Blog2018 (6) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... d:- 28-5-2018 - SHRI SANJAY GARG, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No. 118/CHD/2018 ITA No. 119/CHD/2018 ITA No. 120/CHD/2018 ITA No. 121/CHD/2018 ITA No. 122/CHD/2018 ITA No. 123/CHD/2018 ITA No. 124/CHD/2018 ITA No. 125/CHD/2018 ITA No. 126/CHD/2018 ITA No. 127/CHD/2018 ITA No. 128/CHD/2018 ITA No. 129/CHD/2018 ITA No. 130/CHD/2018 ITA No. 131/CHD/2018 And ITA No. 132/CHD/2018 For The Appellant : Shri Y.K Sud, CA For The Respondent : Ms. Deepika Mohan, Addl.CIT ORDER PER BENCH: All the captioned appeals relate to the same assessee and are directed against separate orders of learned Commissioner of Income Tax (Appeals), Palampur, all dated 03.10.2017, passed in appeal against orders passed u/s 154 of the Income Tax Act,1961(in short the Act ). 2. At the outset it may be pointed out that the above appeals were delayed for filing by 17 days. An application requesting condonation of delay was filed alongwith an affidavit of Shri Dinesh Kumar Sharma, D.M. of the assessee, stating on oath that the delay was caused for the reason that the appeals pertained to a Government company i.e. Forest DM Himachal Pradesh St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st on the statute. 7. Aggrieved by the same, the assessee has come up in appeal before us raising following common grounds of appeals: 1. That CIT(A) was not justified in levying of late filing fees u/s 234E amounting to ₹ 25504/- levied by the ACIT. 2. That the CIT(A) has wrongly sustained the interest of ₹ 259/- 2056/- wrongly charged by he ACIT on late payment. 3. That the CIT(A) failed to appreciate that interest u/s 234E as held by Karnataka High Court could not have been levied and she has wrongly applied the Gujrat High Court in preference to the Karnataka High Court. 4. That the. CIT(A) was not upholding the action of AO that rectification u/s 154 could be carried out without notice to the assessee before rectification. 8. We shall first be dealing with Ground No.4 raised by the assessee, which challenges the order of the CIT(A) in upholding the action of the Assessing Officer in charging the fees u/s 234E of the Act in an order passed u/s 154 of the Act. 9. Ld.counsel for the assessee contended that the AO had no power initially to charge fees u/s 234E of the Act, since the original processing of TDS return and the consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on points on which there may conceivably be two opinions . 13. In the present case fees u/s 234E has been charged in the order passed u/s 154 of the Act. The said fees could have been charged only if the omission to charge the same in the original intimation made u/s 200A of the Act, on 18.04.2015, was an apparent, obvious and glaring mistake with no two views on its chargeability. Admittedly there were contrary decisions of the Hon'ble High Courts on this issue of charging fees u/s 234E of the Act while processing returns u/s 200A of the Act prior to 01.06.2015 when there was no enabling provision. The Ld. CIT(A) has himself referred to the said decisions, which are the decision of the Hon ble Gujarat High Court stating that the fee could be charged in the intimation made u/s 200A of the Act even prior to 1.6.2015, while the Hon'ble Karnataka High Court stating otherwise. Clearly, 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. 14. Further, we note that the Chandigarh Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Rajasthan High Court that no appeal lies against levy of fees u/s 234E. We are not in agreement with the ld. CIT(A) on this issue. As pointed out above, the fees u/s 234E in the present case was levied in the intimations made u/s 200A of the Act. Such intimations are appealable before the CIT(A) as per the provisions of Section 246A of the Act and in the present case, the assessee had filed appeals against these intimations made u/s 200A. Therefore, all the appeals were maintainable and the ld. CIT(A) had wrongly dismissed the assessees appeals holding them to be non-maintainable. As for the reliance placed by the CIT(A) on the orders passed by the Hon'ble Bombay High Court and Hon'ble Rajasthan High Court, we find that the said judgements have been mis-interpreted by the CIT(A). In both these cases, the constitutional validity of Section 234E was challenged before the Hon'ble High Courts and one of the pleas taken by the counsels of the assessees against the introduction of the said Section in the Statute was that there was no provision for filing appeals against the orders passed levying fees u/s 234E. It was in this context that the Hon'ble High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed rule of construction if two reasonable constructions of a statute are possible the construction which favours the assessee must be adopted. In view of the same, respectfully following the decision of the Karnataka High Court in the case of Fatheraj Singhvi (supra), we hold that the fees levied in all the present cases u/s 234E prior to 01.06.2015 in the intimations made u/s 200A was without authority of law and the same is, therefore, directed to be deleted. In view of the above, all the appeals of the assessees stand allowed. 15. In view of the aforesaid decision of the ITAT, 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. 16. For the above reasons we hold that no fees could be charged in the present case u/s 234E in the order passed u/s 154 of the Act. 17. Since we have deleted the fees charged u/s 234E on the legal ground raised, we see no reason to deal with the remaining grounds raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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