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TMI Blog2019 (6) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... t Member For the Appellant : Shri. R.M. Narayanan, C.A. For the Respondent : Shri. Nataraja, IRS, JCIT. ORDER PER INTURI RAMA RAO, ACCOUNTANT MEMBER These six appeals have been filed by the assessee directed against the common order of the learned Commissioner of Income Tax (Appeals)-17, Chennai (hereinafter called as CIT(A) ) dated 18.12.2018 for the assessment year 2013-14. 2. Since, the identical facts and issues are involved in these appeals, we proceed to dispose the same vide this common order. 3. For the sake of convenience and clarity the facts relevant in ITA No.485/Chny/2019 for assessment year 2013-14 are stated herein. 4. The Assessee raised the following grounds of appeal: Levy of Fee u/s 234E : 1. The intimation U/S 200Al154 levying fee U/S 234E is without authority of law. 2. The appellant submits that the amendment made under section 200A which has come into effect on 1-6-2015 has prospective effect. Hence, no computation of fee under section 234E can be made in the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for fee, the liability was generated or had accrued, if there was failure to deliver or cause to be delivered the statement/s of TDS within the prescribed time. But, in our view, s. 234E cannot be read in isolation and is required to be read with the mechanism and the mode provided for its enforcement. As observed by us hereinabove, when s. 234E was inserted in the Act simultaneously, s. 271H was also inserted in the Act providing for the penalty for failure of furnishing of statements etc. Therefore, if there was failure to submit the statement for TDS as per s. 234E, the fee payable is provided but the mechanism provided was that if there was failure to furnish statements within the prescribed date, the penalty under s. 271H(1) and (2) could be imposed. However, under sub-s. (3) of s 271H, the exception is provided that no penalty shall be levied for the failure referred to under cl. (a) of sub-s. (1) if the person proves that after paying TDS with the fee and interest the amount is credited and he had delivered or caused to deliver the statement within one year from the time prescribed for submission of the said statement. To put it in other words, for fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish a statement as required by sub-s. (2C) of s. 192; (j) to deliver or cause to be delivered in due time a copy of the declaration referred to in sub-s. (1A) of s. 206C; (k) to deliver or cause to be delivered a copy of the statement within the time specified in sub-s. (3) of s. 200 or the proviso to sub-s. (3) of s. 206C; (1) to deliver or cause to be delivered the statements within the time specified in sub-s. (1) of s. 206A; (m) to deliver or cause to be delivered a statement within the time as may be prescribed under sub-s. (2A) of s. 200 or sub-s. (3A) of s. 206C, he shall pay, by way of penalty, a sum of one hundred rupees for every day during which the failure continues : Provided that the amount of penalty for failures in relation to a declaration mentioned in s. 197A, a certificate as required by s. 203 and returns under ss. 206 and 206C and [statements under sub-s. (2A) or sub-s. (3) of s. 200 or the proviso to sub-s. (3) or under sub-s. (3A) of s. 206C] shall not exceed the amount of tax deductible or collectible, as the case may be : Provided further t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision 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 foe a aspect which may be required to be considered before such provision 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 s. 234E, the Parliament also provided for its utility for giving privilege under s. 271H(3) that too by expressly put bar for penalty under s. 272A by insertion of proviso to s. 272A(2), it can be said that a particular set up for imposition and the payment of fee under s. 234E was provided but, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fee for the demand or the intimation for the fee under s. 234E could be made for the TDS deducted for the respective assessment year prior to 1st June, 2015. Hence, the demand notices under s. 200A by the respondent-authority for intimation for payment of fee under s. 234E can be said as without any authority of law and the same are quashed and set aside to that extent. 25. As such, as recorded earlier, it is on account of the intimation received under s. 200A for making computation and demand of fees under s. 234E, the same has necessitated the appellant to challenge the constitutional validity of s. 234E. When the intimation of the demand notices under s. 200A is held to be without authority of law so far as it relates to computation and demand of fee under s. 234E, we find that the question of further scrutiny for testing the constitutional validity of s. 234E would be rendered as an academic exercise because there would not be any cause on the part of the petitioners to continue to maintain the challenge to constitutional validity under s. 234E of the Act. At this stage, we may also record that the learned counsels appearing for the appellant had also declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 27.12.2016 is barred by limitation. Per contra, the DR supported the orders of the Ld. AO and the Ld. CIT(A). 4. We find merit in the submissions made by the assessee. As held by this ITAT, the intimation sent to the assessee u/s. 200A dated 16.01.2014 raising the demand of ₹ 9,000/- u/s. 234E towards levy of late filing fee is invalid as there was no enabling provision in section 200A, viz., clause (1)(C) of section 234E, prior to 01.06.2015 for levy of fees u/s. 234E while processing the statement of tax deducted at source. It was open for the AO to pass separate order u/s. 234E levying the fee, provided the limitation for such a levy did not expire. However, in this case, the AO has not passed any order u/s. 234E independently within 31.03.2015 and hence, the impugned order is set aside. Respectfully following the above decisions, we allow the appeal filed by assessee. ITA Nos.486 to 490/Chny/2019:- 8. Since, the facts in the present appeals are identical to the facts in ITA No.485/Chny/2019, for the reasons mentioned therein, we allow the appeals filed by the assessee on the lines indicated in appeal I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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