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TMI Blog2019 (1) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer to charge late filing fees under section 234E of the Act. - Decided in favour of assessee. - SA Nos.104 & 105/PUN/2018 Arising out of ITA Nos.1423 & 1489/PUN/2018 - - - Dated:- 2-11-2018 - Ms. Sushma Chowla, JM And Shri D. Karunakara Rao, AM For the Assessee : Shri Y.S. Nagle For the Revenue : Shri Rajesh Gawli ORDER PER SUSHMA CHOWLA, JM: Both the appeals filed by assessee are against separate orders of CIT(A)-1, Aurangabad, both dated 22.06.2018 relating to assessment years 2013-14 and 2014-15 against respective orders passed under section 200A of the Income-tax Act, 1961 (in short the Act‟). The assessee also filed the captioned Stay Applications. 2. Both the appeals relating to same assessee were heard together and are being disposed of by this consolidated order for the sake of convenience. However, in order to adjudicate the issues, reference is being made to the facts and issues in ITA No.1423/PUN/2018, relating to assessment year 2013-14. The Stay Applications filed in both the captioned assessment years were also heard along with appeals of assessee. 3. The assessee in ITA No.1423/PUN/2018, relating to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out necessary correction in the core banking system and also issued computerized receipt showing correct TAN i.e. NSKNO34171G . However, the effect of correction in TAN was not reflected on OLTAS. For carrying out necessary correction on OLTAS, the assessee school first approached the ITO, TDS, Nanded. But the jurisdiction of assessee school lies with ITO, TDS, Nashik, therefore the ITO, TDS, Nanded was not authorized to do necessary correction. Finally, the necessary correction in TAN was carried out by the ITO, TDS, Nashik. The assessee thus, pleaded that it could not file the TDS return in time because of above said reasons. Supporting correspondence in this regard was filed before the CIT(A), who was of the view that correction / rectification in TAN was made on 14.10.2015. The CIT(A) however, did not accept the plea of assessee on the ground that it was not understood how the assessee could make application to ITO (TDS), Nanded, whereas its jurisdiction was with ITO (TDS), Nashik. He further pointed out that the assessee had delayed in making correction in TAN numbers by almost two years and relying on the decision of Hon‟ble High Court of Kerala in the case of Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. We have heard the rival contentions and perused the record. The issue arising in the present bunch of appeals is against levy of late filing fees under section 234E of the Act while issuing intimation under section 200A of the Act, in the first bunch of appeals. The second bunch of appeals in the case of Junagade Healthcare Pvt. Ltd. is against order of Assessing Officer passed under section 154 of the Act rejecting rectification application moved by assessee against intimation issued levying late filing fees charged under section 234E of the Act. The case of assessee before us is that the issue is squarely covered by various orders of Tribunal, wherein the issue has been decided in respect of levy of late filing fees under section 234E of the Act, in the absence of empowerment by the Act upon Assessing Officer to levy such fees while issuing intimation under section 200A of the Act. The Tribunal vide order dated 21.09.2016 with lead order in ITA Nos.560/PN/2016 561/PN/2016, 1018/PN/2016 to 1023/PN/2016 in Maharashtra Cricket Association Vs. DCIT (CPC)-TDS, Ghaziabad, relating to assessment years 2013-14 and 2014-15 for the respective quarters deliberated upon the issue and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority would also be a aspect which may be required to be considered before such provisions is held to be retroactive in nature. Further, when any provision is inserted for liability to pay any tax or the fee by way of compensatory in nature or fee independently simultaneously mode and the manner of its enforceability is also required to be considered and examined. Not only that, but, if the mode and the manner is not expressly prescribed, the provisions may also be vulnerable. All such aspects will be required to be considered before one considers regulatory mechanism or provision for regulating the mode and the manner of recovery and its enforceability as retroactive. If at the time when the fee was provided under Section 234E, the Parliament also provided for its utility for giving privilege under Section 271H(3) that too by expressly put bar for penalty under Section 272A by insertion of proviso to Section 272A(2), it can be said that a particular set up for imposition and the payment of fee under Section 234E was provided but, it did not provide for making of demand of such fee under Section 200A payable under Section 234E. Hence, considering the aforesaid peculiar facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Karnataka (supra), there is no merit in observations of CIT(A) that in the present case, where the returns of TDS were filed for each of the quarters after 1st day of June, 2015 and even the order charging late filing fees was passed after June, 2015, then the same are maintainable, since the amendment had come into effect. The CIT(A) has overlooked the fact that notices under section 200A of the Act were issued for computing and charging late filing fees under section 234E of the Act for the period of tax deducted prior to 1st day of June, 2015. The same cannot be charged by issue of notices after 1st day of June, 2015 even where the returns were filed belatedly by the deductor after 1st June, 2015, where it clearly related to the period prior to 01.06.2015. 16. We hold that the issue raised in the present bunch of appeals is identical to the issue raised before the Tribunal in different bunches of appeals and since the amendment to section 200A of the Act was prospective in nature, the Assessing Officer while processing TDS returns / statements for the period prior to 01.06.2015 was not empowered to charge late filing fees under section 234E of the Act, even in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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