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TMI Blog2018 (11) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... collect the fees by the prescribed authority vested in such authority only by way of substitution of clause (c) to section 200A(1) of the Act by the Finance Act, 2015 w.e.f 01.06.2015. Since, prior to said substation the Assessing Officer had no authority to charge the fees under section 234E of the Act while issuing intimation under section 200A of the Act and henceforth levy of fees u/s 234E in the case is without authority." ITA. No. 19/JP/2017: "1. The Commissioner of Income Tax, (Appeals)-3, Jaipur ("the CIT(A)") erred in fact and in law in confirming the levy of fees for delay in filing the TDS return u/s 234E of the Income Tax Act, 1961 (the Act) without appreciating the facts and circumstances of the case. The CIT(A) ought to have directed to waive the said fees. 2. The learned CIT(A) erred in fact and in law in adjudicating an issue of validity of the impugned levy of fees u/s 234E in the order passed u/s 200A of the Act. The CIT(A) ought to have appreciated that the power to collect the fees by the prescribed authority vested in such authority only by way of substitution of clause (c) to section 200A(1) of the Act by the Finance Act, 2015 w.e.f 01.06.2015. Since, pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the rival contentions and perused the material available on record. The assessee has taken the plea that due to absence of the concern employee who was handling the TDS and related tax matters, the present appeal could not be filed in time. In support of its contention, the assessee has filed the necessary affidavit as well as the affidavit of the concern employee which is not disputed by the Revenue. We thus find the reasons explained by the assessee to be true and the explanation bonafide and not mala fide. It is settled proposition of law that the Court should take a lenient view on the matter of condonation of delay provided the explanation and reasons for delay is bonafide and not merely a device to cover an ulterior purpose or an attempt to save limitation in an underhand way. While construing the sufficient cause, a liberal view should be taken and the Court should lean in favour of the party provided the reasons for delay are bonafide. Whenever substantial justice and technical considerations are opposed to each other, cause of substantial justice has to be preferred. On the facts and reasons explained by the assessee, we are satisfied that the assessee was prevented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... processed in the following manner, namely:- (c) the fee, if any, shall be computed in accordance with the provisions of section 234E;" 6.3 Hence, for the above it is clear that although prior to 1.6.2015, fees u/s 234E can be levied, yet the same cannot be levied while processing TDS statement u/s 200A. 6.4 In the present case, the assessee filed its TDS return for Q4 with a delay of 139 days on 01.10.2013. The same was processed u/s 200A vide order dated 25.12.2013. However, Ld. AO erred in levying fees u/s 234E while processing the TDS statement for a period prior to 1.6.2015. 6.5 It was submitted that as per the well established principles of interpretation of statute, unless it is expressly provided or impliedly demonstrated, any provision of statute is to be read as having prospective effect and not retrospective effect. Under the circumstances, we find that substitution made by clause (c) of sub- section (1) of Section 200A can be read as having prospective effect and not having retroactive character or effect. 6.6 Thus the action of Ld. AO is bad in law since the impugned intimation u/s 200A was processed in the period prior to 1.6.2015. Hence, the action of Ld. AO is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard, the ld AR of the assessee has relied on the decision of the Hon'ble Supreme Court in the case of CIT Vs. Vatika Township P. Ltd. (2014) 367 ITR 466 (SC). In view of the decision of the Hon'ble Supreme Court in the case of CIT Vs. Vatika Township (supra), the demand so raised are directed to be deleted..." * M/s. Sandeep Jhanwar Advisory Services Pvt. Ltd. Vs. The TDS CPC (ITA No. 722 & 723/JP/2016) "..We find merit into the contention of ld. Counsel that the jurisdictional High Court has decided the validity of section 234E, but has not decide the issue of power of AO for levy of tax under section 234E in the judgment rendered in the case of M/s. Dundlod Shikshan Sansthan and Others (supra) as relied by ld. CIT (A). We have considered the recent decision of Hon'ble Karnataka High Court in the case of Shri Fatheraj Singhvi & Ors (supra) wherein the issue of levy of fees u/s 234E on statements processed u/s 200A before 01.06.2015 has been categorically discussed by the Hon'ble High Court and in para 24 of the said order it was held that "no demand for fee u/s 234E can be made in intimation issued for TDS deducted u/s 200A before 01.06.2015". We have also gone thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s quashed the intimation issued under section 200A of the Act levying the fees for delayed filing the TDS statements under section 234E of the Act. The Hon'ble High Court notes that the Finance Act, 2015 had made amendments to section 200A of the Act enabling the Assessing Officer to make adjustments while levying fees under section 234E of the Act was applicable w.e.f. 01.06.2015 and has held that it has prospective effect. Accordingly, the Hon'ble High Court held that "intimation raising demand prior to 01.06.2015 under section 200A of the Act levying section 234E of the Act late fees is not valid". However, the Hon'ble High Court kept open the issue on constitutional validity of section 234E of the Act. We have already referred to the decision of Hon'ble Bombay High Court in Rashmikant Kundalia's case (supra) in this regard, wherein the constitutional validity of section 234E of the Act has been upheld. 34. Accordingly, we hold that the amendment to section 200A(1) of the Act is procedural in nature and in view thereof, the Assessing Officer while processing the TDS statements / returns in the present set of appeals for the period prior to 01.06.2015, was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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