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TMI Blog2018 (10) TMI 1587X X X X Extracts X X X X X X X X Extracts X X X X ..... th the bunches relate to similar issue of levy of charges under section 200A r.w.s. 234E of the Act. In order to adjudicate the issues, we refer to the facts and issues in ITA No.651/PUN/2018. 4. The assessee in ITA No.651/PUN/2018 has raised the following grounds of appeal:- 1] The learned CIT(A) erred in upholding the levy of late fee u/s 234E of Rs. 3,000/- in the intimation order u/s 200A passed in respect of TDS statement filed in Form 24Q for Quarter 2 of A.Y. 2013-14. 2] The learned CIT(A) failed to appreciate that the levy of late fee u/s 234E in the intimation order passed u/s 200A for A.Y. 2013-14 (Q2 - 24Q was bad in law and hence, the same ought to have been deleted. 5. Briefly, in the facts of the case, the assessee had furnished TDS returns for different quarters in Form No.24Q relating to assessment years 2013-14, 2014-15 and 2015-16. The said TDS returns were processed and late filing fees was charged under section 234E of the Act for default in quarter No.2 in assessment year 2013-14, late fees of Rs. 3,000/- was levied, for quarter No.3, Rs. 4,500/- and for quarter No.4, Rs. 1,67,490/- was levied. Similarly, for four quarters of assessment year 2014-15, lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to tax deducted at source, by levying late filing fees under section 234E of the Act. Thus, the Assessing Officer could not make any adjustment other than the ones prescribed in section 200A of the Act. The Assessing Officer could make adjustment relating to levying of late filing fees under section 234E of the Act only w.e.f. 01.06.2015. He further observed that the date of processing was thus important. In the instant case of assessee, not only the processing was done after 01.06.2015 but the returns for all the quarters were filed after amendment to section 200A of the Act. He acknowledged that late filing fees under section 234E of the Act related to financial years 2012-13, 2013-14, 2014-15 and 2015-16, wherein TDS returns were filed after the amendment i.e. 01.06.2015 and intimation under section 200A of the Act was also sent. He further referred to the decisions of Hon'ble Bombay High Court and Hon'ble High Court of Karnataka, wherein the constitutional validity of section 234E of the Act has been upheld. He then referred to recent decision of the Hon'ble High Court of Gujarat, in the case of Rajesh Kourani Vs. Union of India (2017) 83 taxmann.com 137 (Guj), which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the decision in favour of assessee is to be applied. For this proposition, he relied on the ratio laid down by the Hon'ble Supreme Court in CIT Vs. M/s. Vegetable Products Ltd. (1973) 88 ITR 192 (SC) and ratio laid down by Agra Bench of Tribunal in Sudarshan Goyal Vs. DCIT (2018) 194 TTJ UO (Agra)(UO) 22. 9. In respect of second bunch of appeals in Junagade Healthcare Pvt. Ltd., the learned Authorized Representative for the assessee pointed out that the issue is identical. However, the CIT(A) held the appeals filed by assessee to be delayed. In this regard, he pointed out that appeals filed by assessee were not against intimation issued by Assessing Officer but against the order passed under section 154 of the Act and the CIT(A) has erred in computing the period in which the appeals has to be filed. He further pointed out that similar issue has been decided by Pune Bench of Tribunal in Swami Vivekanand Vidyalaya Vs. DCIT (CPC)-TDS, Ghaziabad (supra). 10. The learned Departmental Representative for the Revenue on the other hand, placed heavy reliance on the orders of authorities below. 11. We have heard the rival contentions and perused the record. The issue arising in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra) had also laid down similar proposition that the amendment to section 200A of the Act w.e.f. 01.06.2015 has prospective effect and is not applicable for the period of respective assessment years prior to 01.06.2015. The relevant findings of the Hon'ble High Court are in paras 21 and 22, which read as under:- "21. However, if Section 234E providing for fee was brought on the state book, keeping in view the aforesaid purpose and the intention then, the other mechanism provided for computation of fee and failure for payment of fee under Section 200A which has been brought about with effect from 1.6.2015 cannot be said as only by way of a regulatory mode or a regulatory mechanism but it can rather be termed as conferring substantive power upon the authority. It is true that, a regulatory mechanism by insertion of any provision made in the statute book, may have a retroactive character but, whether such provision provides for a mere regulatory mechanism or confers substantive power upon the authority would also be a aspect which may be required to be considered before such provisions is held to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under section 200A of the Act were for the period prior to 01.06.2015, then same were illegal and invalid. Vide para 27, it was further held that the impugned notices under section 200A of the Act were for computation and intimation for payment of fees under section 234E of the Act as they relate for the period of tax deducted at source prior to 01.06.2015 were being set aside. 15. In other words, the Hon'ble High Court of Karnataka explained the position of charging of late filing fees under section 234E of the Act and the mechanism provided for computation of fees and failure for payment of fees under section 200A of the Act which was brought on Statute w.e.f. 01.06.2015. The said amendment was held to be prospective in nature and hence, notices issued under section 200A of the Act for computation and intimation for payment of late filing fees under section 234E of the Act relating to the period of tax deduction prior to 01.06.2015 were not maintainable and were set aside by the Hon'ble High Court. In view of said proposition being laid down by the Hon'ble High Court of Karnataka (supra), there is no merit in observations of CIT(A) that in the present case, where the returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), in the absence of any decision rendered by the jurisdictional High Court. The Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (2015) 54 taxmann.com 200 (Bom) had decided the constitutional validity of provisions of section 234E of the Act and had held them to be ultra vires but had not decided the second issue of amendment brought to section 200A of the Act w.e.f. 01.06.2015. In view thereof, respectfully following the ratio laid down by the Hon'ble High Court of Karnataka and Pune Bench of Tribunal in series of cases, we delete the late filing fees charged under section 234E of the Act for the TDS returns for the period prior to 01.06.2015. 18. Further before parting, we may also refer to the order of CIT(A) in the case of Junagade Healthcare Pvt. Ltd., where the CIT(A) had dismissed appeals of assessee being delayed for period of December, 2013 and July, 2014. The CIT(A) while computing delay had taken the date of intimation under section 200A of the Act as the basis, whereas the assessee had filed appeals before CIT(A) against the order passed under section 154 of the Act. The CIT(A) had noted that rectification application was filed in February, 2018 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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