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TMI Blog2019 (11) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... g late filing fee u/s 234E of the Act, suffers from infirmity as clause (c) to section 200(A)(1) of the Act has been made applicable specifically from the date from 01.06.2015. Since the period of default was before the said date i.e. 01.06.2015, there is no merit in charging late filing fee u/s 234E. As we hold that no late filing fee is to be charged, then consequent interest charged u/s 220(2) of the Act also do not survive. - Decided in favour of assessee. - ITA No.5386/Del/2017, ITA No.5989/Del/2017, ITA No.5990/Del/2017 - - - Dated:- 29-11-2019 - Ms. Sushma Chowla, JM And SH.R.K. Panda, AM For the Appellant : Sh. Suresh K. Gupta, CA For the Respondent : Sh. Sanjog Kapoor, Sr. DR ORDER PER SUSHMA CHOWLA, JM: These three appeals filed by different assessee are against order of CIT(A)-19, New Delhi and CIT(A)-41, New Delhi dated 03.07.2017; 26.07.2017 26.07.2017 relating to assessment years 2016-17; 2013-14 and 2013-14 respectively. 2. The issue arising in the present bunch of appeals is against the imposition of late filing fee u/s 234E of the Act. To adjudicate the issue, we are first referring to the facts and issue raised in ITA No.5380/Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered in the nature of a clarifactory amendment. The levy of fee u/s 234E can be done prior to 01.06.2015 and is held to be legally correct as the charging section, section 234E came into operation from 01.06.2012. 6. The assessee is in appeal against the order of the CIT(A). 7. In the case of Udit Jain, the Ld.AR for the assessee pointed out that the amendment to the section was w.e.f. 01.06.2015 and the issue in this appeal is with regard to first quarter of Financial Year 2015-16. He further stated that the assessee was a small businessman and had deducted tax at source against purchase of property u/s 195 of the Act. The said tax was deducted on 18.05.2015 and was deposited on 18.05.2015. However, the return for the TDS deduction was not filed in time in Form No.27A, which was filed on 26.03.2016. He further stated that the issue raised in the present appeal is covered by the decision of Pune bench of the Tribunal in Maharashtra Cricket Association, Pune vs DCIT [2016] 74 taxmann.com 6 (Pune-Trib.). He further pointed out that the issue is covered by the decision of Hon ble Karnataka High Court in Fatehraj Singhvi Others vs Union of India (supra) and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A 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 held as under:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensatory 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 and circumstances, we are unable to accept the contention of the learned counsel for respondent-Revenue that insertion of clause (c) to (f) under Section 200A(1) should be treated as retroactive in character and not prospec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling 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 cases where such TDS returns were filed belatedly after June, 2015 and even in cases where the Assessing Officer processed the said TDS returns after June, 2015. Accordingly, we hold that intimation issued by Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in condonation of delay, wherein appeals were filed beyond the period prescribed. The assessee had filed appeals against the order passed under section 154 of the Act, hence the time period of appeals filed by assessee before the CIT(A) have to be computed from the date of order passed under section 154 of the Act and not from the date of issue of intimation. Thus, there is no merit in the order of CIT(A) in dismissing the appeals of assessee on this issue. 19. We find similar issue has been decided by us in the case of Medical Superintendent Rural Hospital Vs. ACIT(CPC)-TDS (supra) and vide para 15, order dated 21.12.2017 it was held as under:- 15. Further, before parting, we may also refer to the order of the CIT(A) in these two appeals. The CIT(A) had dismissed the appeals of the assessee being delayed for a period of two and half years. The CIT(A) had taken the date of intimation under section 200A(3) dated 07-08-2014 and computed the delay in filing the appeal late before him. However, the assessee had filed the appeal before the CIT(A) against the order passed under section 154 of the Act. The said application for rectification under section 154 was filed on 08- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 200A provides that where the statement of tax deduction at source has been made by the person deducting any sum u/s 200, then such statement shall be processed in the manner given therein. Clause (c) of section 200A has been substituted by the Finance Act 2015 w.e.f. 1.6.2015 which reads as under:- (c) the fee, if any, shall be computed in accordance with the provisions of section 234E; 6.1. Fee for default u/s 234E provides that, when a person fails to deliver or cause to be delivered a statement within the time prescribed u/s 200(3), then that person shall be liable to pay fee in the manner provided therein. Thus, fee u/s 234E is leviable if the statement is not filed as prescribed u/s 200(3) which in turn provides that the statement to be filed after the payment of tax to the prescribed authority. The relevant rule 31A(4A) provides that for filing of the 'challan cum statement' within seven days from the date of deduction. Now here in this case the demand has been raised purely on the ground that statement has not been furnished for the tax deduction at source. As stated above, the assessee has duly deposited the tax not at the time of purchase alb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, such an interest is also deleted. 11. Now coming to the facts of the present case before us, the assessee, Udit Jain had deducted tax at source u/s 195 of the Act against purchase of property. The tax was deducted at 18.05.2015 and was even paid on 18.05.2015, though the return in Form No.27A was filed on 23.06.2016. We hold that since the period under consideration is first quarter of Financial Year 2015-16 i.e. prior to the amendment to section 200A(1) of the Act wherein clause (c) was inserted w.e.f. 01.06.2015 and since the assessee had already deposited the tax deducted at source, on the same day of deduction, there was reasonable cause in the hands of the assessee in not depositing the return in Form No.27A and the said default needs to be condoned. Even otherwise, following the ratio laid down in the decisions rendered to in the paras above, the Jurisdictional issue of exercise of power by the Assessing Officer in charging late filing fee u/s 234E of the Act, suffers from infirmity as clause (c) to section 200(A)(1) of the Act has been made applicable specifically from the date from 01.06.2015. Since the period of default was before the said date i.e. 01.06.2015, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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