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TMI Blog2021 (7) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Senior DR ORDER PER KULDIP SINGH, JUDICIAL MEMBER : Appellant, Shri Raj Veer Singh (hereinafter referred to as the assessee ) by filing the present appeal sought to set aside the impugned order dated 10.03.2017 passed by the Commissioner of Income-tax (Appeals)-41, New Delhi confirming the order passed by the Assessing Officer under section 200A of the Income-tax Act, 1961 (for short the Act ) qua the assessment year 2015-16 on the grounds inter alia that :- 1(i) That on facts and circumstances of the case, the Ld. CIT(A) was not justified in confirming the levy of aggregate late fee of ₹ 1,29,860/- pertaining to 4 quarters relevant to FY 2014-15 u/s 234E, of the Income Tax Act, 1961 without appreciating the law and facts of the case. (ii) That the provision for levy late fee u/s 200A(1)(c) read with section 234E was introduced vide Finance Act 2015 w.e.f. 01/06/2015 and as such the order U!S 200A is illegal and without jurisdiction. (iii) That in absence of provision in the statute, the impugned order is invalid and bad in law. 2(i) That the TDS having been deposited along with interest and there being no case of deliber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49102 5894 26Q 30.10.2015 49102 Total 129857 6. It is also not in dispute that the assessee claimed that he has no full time qualified accountant and also pleaded ignorance of penal provisions and consequence of late deposit of TDS deducted, non/late filing of statement etc., because of low business turnover and incurring of cash loss during the year. It is also not in dispute that assessee has already deposited TDS along with interest for the delayed period. It is also not in dispute that the assessee has already filed quarterly statement of TDS deducted for the fourth quarter of FY 2014-15 on 30.10.2015 i.e. beyond the due date. 7. In the backdrop of aforesaid facts and circumstances of the case, the ld. AR for the assessee contended that no doubt, the charging section of levy of late fee u/s 234E is a statutory provision effective from the year 2012 but there was no machinery provision u/s 200A of the Act which empowered the AO to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals. 23. Further, the Hon ble Delhi High Court in the case of Remfry and Sons (supra) has held that procedural/technical mistakes could not stand in the way of imparting justice and the authority must allow opportunity to the assessee to rectify mistakes. Since, in the instant case, there was merely a technical mistake in wrong mentioning of the provision, therefore, we are of the considered opinion that this technical mistake should not stand in the way of imparting justice and, therefore, the order of the CIT(A) holding that there is delay in filing of these appeals is not correct. Accordingly, we hold that the assessee has filed the appeals well in time and there is no delay. The order of the CIT(A) on this issue is accordingly dismissed. 19.1 Since the facts of the case are identical, therefore, following similar reasonings we hold that there is no delay in filing of the appeals. 20. A perusal of the orders of the CIT(A) shows that he has confirmed the amount of late filing fee u/s 234E on the ground that the section 200A was amended by the Finance Act, 2015 w.e.f. 01.06.2015 and, therefore, the AO was empowered to levy late filing fee u/s 234E pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while issuing intimation under section 200A 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 process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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) 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government within the prescribed time, prepare such statement for such period as may be prescribed. Provision of section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st u/s 201(IA), the same cannot be charged as admittedly no order u/s 201(1) has been passed holding the assessee to be assessee in default and, therefore, such an interest is also deleted. 20. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng TDS/TCS statements / returns even for the period prior to 1.06.2015 is concerned, as mentioned earlier there are conflicting decisions by different High Courts and there is no decision on this issue by the jurisdictional High Court. While Hon ble Karnataka High Court is in favour of the assessee holding that the amendments brought in statute w.e.f. 01.06.2015 are prospective in nature and hence notices issued u/s. 200 A of the Act for computation and intimation in payment of late filing fee u/s.234E of the Act relating to the period of tax deduction prior to 01.06.2015 were not maintainable, the Hon ble Gujarat High Court has decided the issue against the assessee and in favour of the revenue. After considering the above conflicting decisions, the coordinate benches of the Tribunal are taking the view that when there are conflicting decisions, the decision in favour of the assessee should be followed in the light of decision of Hon ble Supreme Court in the case of Vegetables Products Limited (supra). In the light of the above discussion we hold that the CIT(A) is not justified in confirming the late fee levied by the AO u/s. 200 A r.w.s. 234 E since the defaults are prior to 1.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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