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TMI Blog2019 (6) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... to delete the levy of fee u/s.234E. - ITA Nos. 71 to 82/CTK/2020 - - - Dated:- 30-6-2019 - SHRI C.M. GARG, JM AND SHRI L.P. SAHU, AM For the Assessee : Shri Purna Chandra Mishra, AR For the Revenue : Shri Suresh Siva Nanda, DR ORDER Per Bench : These are the twelve appeals have been filed by the assessee against the order of CIT(A)-1, Bhubaneswar all dated 07.11.2019 pertinent to 2nd, 3rd 4th Quarters for the Financial Year 2012-2013, relevant to Assessment Year 2013-2014, 1st, 2nd, 3rd 4th Quarters for the Financial Year 2013-2014 relevant to Assessment Year 2014-2015, 1st, 2nd, 3rd 4th Quarters for the Financial Year 2014-2015 relevant to Assessment Year 2015-2016 and 1st Quarter for the Financial Year 2015-2016 relevant to Assessment Year 2016-2017, respectively. 2. The sole issue involved in all these appeals relating to levy of late filing fees u/s.234E of the Act. 3. Brief facts of the case are that the assessee is a Government aided college. The assessee filed the TDS return for the respective quarters belatedly, therefore, the ACIT(CPC-TDS), Ghaziabad raised the following demands for the respective quarters and respective financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, relied on the orders of authorities below. 8. After hearing the submissions of both the sides and perusing the entire material available on record, we find that the assessee has deducted TDS, which has been deposited within the time and on perusal of the demand notice raised by the CPC(TDS), it is noticed that there is no any short payment, short deduction/collection, interest on payment default u/s.201(1A)/206C(7) of the Act, interest on short payment, interest on deduction/collection default u/s.201(1A)/206C(7) of the Act, interest on short deduction/collection, interest on late deduction/collection, which shows that there was no delay for deduction and deposit. Only the assessee did not comply the provisions of Section 234E of the Act, therefore, the CPC(TDS) has raised the demand against the assessee. The issue before us relates to prior to the amendment in Section 234E of the Act. We have also gone through the decision of the coordinate bench of the Tribunal in the case of Glee Pharma Pvt. Ltd. (supra), wherein the Tribunal has decided the issue in favour of the assessee upto the extent of amendment in Section 234E of the Act w.e.f.01.06.2015 after observing as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deducted by the respective assessees and deposited in the Government account. However, as per the Department, there was delay in filing the return/statement with the details of the persons from whom the TDS was deducted including the details and the persons concerned and the transactions etc. The Department issued intimation u/s 200A of the Act, calling upon the respective assessees to pay late filing fee u/s 234E of the Act in purported exercise of the power u/s 200A of the Act. The assessee challenged the levy of the fee and also the vires of the statute (Section 234E). The Hon'ble High Court did not make any finding in respect of the vires of the statute and the said issue was left open. However, the Hon'ble High Court held that prior to 01.06.2015, the AO while issuing intimation u/s 200A does not have the authority under law, to make any order u/s 243E of the Act and was pleased to delete the order of levy of late fee u/s 234E of the Act. The Hon'ble High Court held as follows In para 22 to 24 which is reproduced as under: 22. It is hardly required to be stated that, as per the well established principles of interpretation of statute, unless it is expressly prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O can levy fee under section 234E of the Act while processing the statement under section 200A of the Act and not before. Therefore, respectfully relying the order of the Hon'ble Karnataka High Court, the impugned intimation of the lower authorities levying fee under section 234E of the Act cannot be sustained in law. Accordingly the intimation under section 200A as confirmed by the Ld. CIT(A) in so far as levy of fee under section 234E is set aside and fee levied u/s 243E in all the appeals are ordered to be deleted. However, the other adjustments made by the AO in the impugned intimation shall stand as such. 6. In the appeals before us, the financial year involved is 2013-14. Therefore, respectfully following the precedent, we set aside the orders of lower authorities and delete the levy of fee u/s.234 E of the Act in all the quarters and allow the appeals filed by the assessee. 9. Further, the coordinate Bench of the Tribunal in case of Govt. High School, Unit-VI, Bhubaneswar in ITA No.379/CTK/2018, dated 14.10.2019, has held as under :- 7. After hearing the submissions of ld. DR, we noticed that the demand issued by the CPC, Ghaziabad dated 03.06.2015 imposing lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax of certain specified receipt u/s. 206C of the Act). In order to provide effective deterrence against the delay in furnishing TDS/TCS statements, the Finance Act, 2012 inserted sec. 234E of the Act to provide for levy of fees on late furnishing of TDS statements. The Memorandum of Finance Bill, 2015, further took note of the fact that the Finance (No. 2) Act 2009, inserted sec. 200A in the Act, which prescribed for furnishing of TDS statements for determining the amount payable or refundable to the deductor. It further took note that however, as sec. 234E of the Act was inserted after the insertion of sec. 200A in the Act, the existing provisions of sec. 200A of the Act do not provide for determination of late fees payable u/s. 234E of the Act at the time of processing of TDS statement. It was thus, proposed to amend the provisions of sec. 200A of the Act so as to enable the computation of taxes payable u/s. 234E of the Act at the time of processing of TDS statement u/s. 200A of the Act. Taking note of the aforesaid legal history the Memorandum explaining Finance Bill, 2015 took note of the fact that at that time there does not exist any provision in the Act to enable the process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we allow the grounds of appeal raised by the assessee. 10. We, on perusal of all the appeals under consideration, find that the issue involved in the appeals i.e ITA Nos.71 to 81/CTK/2020 are covered by the above orders of the Tribunal as the amendment to Section 200(3) of the I.T. Act was made only with effect from June 1st, 2015. Except for the Quarter-1 in the assessment year 2016-2017(i.e.ITA No.82/CTK/2020), fee levied u/s.234E of the Act for the 2nd, 3rd 4th quarters of the Financial Year 2012-2013 relevant to assessment year 2013-2014 and for 1st, 2nd, 3rd 4th quarters of the Financial Year 2013-2014 relevant to assessment year 2014-2015 and for 1st, 2nd, 3rd 4th quarters of the Financial Year 2014-2015 relevant to assessment year 2015-2016 on account of late filing of TDS return, are coming under the purview of amendment to Section 200(3) of the Act. Therefore, the fee levied u/s.234E of the Act while processing the statement of tax deducted at source was beyond the scope provided under Section 200A of the Act. Respectfully following the judicial precedent cited supra, we set aside the orders of lower authorities and direct the AO to delete the levy of fee u/s.234E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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