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TMI Blog2019 (12) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... require no interreference on our part. The action of revenue in levying the same is upheld. - I .T.A. No.4959/Mum/2018 - - - Dated:- 10-12-2019 - HON BLE SHRI MAHAVIR SINGH, JM AND HON BLE SHRI MANOJ KUMAR AGGARWAL, AM For the Appellant : None For the Respondent : Ms. Kavita P. Kaushik Ld. DR ORDER Manoj Kumar Aggarwal (Accountant Member) 1.1 Aforesaid appeal by assessee for Assessment Year [in short referred to as AY ] 2013-14 contest the order of Ld. Commissioner of Income-Tax (Appeals)-1, Thane [in short referred to as CIT(A) ], Appeal No. ITA 348/2014-15 dated 14/06/2018 on following grounds of appeal: - (1) The Learned C.I.T. (A) has erred in confirming the penalty without considering the facts and circumstances of the case. (2) The learned C.I.T. (A) has erred in rejecting the genuine reason of Appellant representative. (3) The order of the C.I.T. (A) in this case is based upon surmises and conjectures and far removed from the facts of the case. 1.2 When the appeal was called for hearing, none appeared for assessee and hence, the matter was proceeded with ex-parte qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary decision of Hon ble Gujarat High Court rendered in Rajesh Kourani V/s Union of India (297 CTR 502 20/06/2017) wherein the Hon ble court has declined to concur with the aforesaid adjudication of Hon ble Karnataka High Court and upheld the levy of fees u/s 234E since its introduction w.e.f. 01/07/2012. 2.4 Proceeding further, we find that Pune bench of Tribunal in its recent decision tiled as Medical Superintendent Rural Hospital, DOBI, BK V/s DCIT (100 Taxmnan.com 78 25/10/2018), faced with similar factual matrix, chose to follow the favorable decision rendered by Hon ble Karnataka High Court by drawing analogy from the decision of Hon ble Supreme Court rendered in CIT V/s Vegetable products Ltd. (1972 88 ITR 192) for the conclusion that in case of two reasonable constructions of taxing statutes, the one that favors the assessee must be adopted. The relevant findings of co-ordinate bench were as follows: - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 which was rejected by CPC on the same day. The CIT(A) was of the view that there was no merit in condonation of delay, wherein appeals were filed beyond the period prescribed. The assessee had filed appeals against the order passed un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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