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TMI Blog2020 (8) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... 4E has been levied having tax effect less than the prescribed limit, it will continue to be governed by low tax effect circular issued by the CBDT which is binding on the Revenue. Present appeal filed by the Department is dismissed on account of low tax effect given that the matter is not covered by any of the exceptions so specified and the contentions advanced by the ld DR on merits of the case are left open and not adjudicated upon. Appeals filed by the Revenue are dismissed. - ITA No. 595/JP/2019, ITA No. 519/JP/2019 - - - Dated:- 14-5-2020 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : None For the Revenue : Ms. Rooni Pal (DCIT) ORDER PER: VIKRAM SINGH YADAV, A.M. These are two appeals filed by the Revenue against the orders of ld. CIT(A)-3, Jaipur dated 30.01.2019 and 06.02.2019 for A.Y 2016-17 2015-16 respectively. Both the appeals were taken up together and are being disposed off by this consolidated order. 2. None appeared on behalf of the assessee nor was any adjournment application filed. Given that the appeal was filed by the Revenue way back in April 2019 and the matter has been adjourned from time to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with 124 of the Income Tax Act, 1961. 6. It was submitted by the ld DR that the order of the ld. CIT (A)-3, Jaipur is not acceptable to the Department in view of the facts of the case and provisions of Section 200(A)(1)(c) which was amended by the Finance Act, 2015 w.e.f. 01.06.2015. It was submitted that from the reading of the said provisions of the Act, it is clear that the levy of fee shall be computed in accordance with provisions of Section 234E and no intimation under Sub-Section (1) to Section 200A shall be sent after the expiry of one year from the end of the financial year in which the statement is filed. It is also clear that the provision of fee is mandatory in nature levied on processing of the late filing of eTDS statement(s) under Section 200A(1)(c) of the Act after amendment w.e.f. 01.06.2015 by the Finance Act, 2015. It is evident that there is no dispute on the fact that the assessee deductor has filed TDS statement for quarter-3 of F.Y. 2016-17 delayed on 11.03.2017 and the same was processed with default of delay on 17.03.2017 with levy of fee u/s 234E which was communicated to the assessee within the prescribed time as provided under the proviso to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of India held the application of fee u/s 234E as constitutional valid and accordingly Writ petition were dismissed. 9. It was submitted by the ld DR that as per law and in view of the above judgments, the fee u/s 234E read with Section 200A(1)(c) is not a penalty as referred to in the Chapter-XXI of the Act and which is distinguishable of the penalty is mandatory in nature and the same is not provided as appealable u/s 246A(1). Thus the fee u/s 234E levied on processing of the eTDS statement filed for the period after insertion of Clause(c) of Section 200A(1) is intra vires and it is covered by the exception 10(a) as well as 10(e) of the Board Circular No. 3/2018 dated 11.07.2018 although the tax effect is below the prescribed monetary limit. 10. It was accordingly submitted by the ld DR that in view of the above facts and circumstances of the case and the law and further relying upon above judgments, it is submitted that the order of the ld. CIT (A) is bad and illegal in the law and it is prayed that the order may kindly be quashed or annulled and set aside for the sake of justice on the grounds and questions of law. 11. We have heard the ld DR and purused the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adverse judgments relating to the said matter should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect. 14. In the present case, we find that the ld CIT(A) has nowhere stated in his order that provisions of section 234E are not constitutional valid and hence, he is deleting the fee u/s 234E of the Act. He has merely referred to the submission of the assessee where the latter has stated that an SLP has been admitted against the decision of the Hon ble Bombay High Court in case of Rashmikant Kundalia and others vs Union of India and others where it was held that the provisions of section 234E are constitutionally valid and in view of the fact that the SLP has been admitted, no recovery of fees can be executed. Infact, it is not even the submission of the assessee before the ld CIT(A) that the fee is not constitutionally valid. Therefore, it cannot be inferred that he has acceded to the contention of the assessee that such provisions are not constitutionally valid. Whether a particular provision is within the four corners of the Constitution is a matter which falls in the excl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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