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TMI Blog2021 (11) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... or the sake of convenience and clarity, the facts relevant to the appeal in ITA No. 1818/PUN/2018 are stated herein. 4. Briefly, the facts of the case are as under:- The appellant is a company incorporated under the provisions of the Companies Act, 1956. During the financial year 2012-13, the appellant company had submitted statements of tax deducted at source belatedly. The CPC (TDS) had issued an intimation dated 02.10.2016 levying late fees u/s. 234E of the Income Tax Act, 1961 ('the Act') for belated submission of TDS statements of Rs. 53,800/-, Rs. 9,000/-, Rs. 35,400/- and Rs. 11,400/-. 5. Being aggrieved, an appeal was preferred before the ld. CIT(A), who vide impugned order dismissed the appeal placing reliance on the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation of the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi (supra) are extracted hereunder:- "19. Hence, it can be said that, the mechanism provided for enforceability of Section 200(3) or 206C (3) for filing of the statement by making it penal under Section 272A (2) (k) is done away in view of the insertion of Section 271H providing for penal provision for such failure to submit return. When the Parliament has simultaneously brought about Section 234E, Section 271H and the aforesaid proviso to Section 272A(2), it can be said that, the fee provided under Section 234E is contemplated to give a privilege to the defaulter to come out from the rigors of penalty provision under Section 271H (1)(a) if he pays the fee within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision 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 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 inserti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test. 23. In view of the aforesaid observation and discussion, since the impugned intimation given by the respondent-Department against all the appellants under Section 200A are so far as they are for the period prior to 1.6.2015 can be said as without any authority under law. Hence, the same can be said as illegal and invalid. 24. If the facts of the present cases are examined in light of the aforesaid observation and discussion, it appears that in all matters, the intimation given in purported exercise of power under Section 200A are in respect of fees under Section 234E for the period prior to 1.6.2015. As such, it is on account of the intimation given making demand of the fees in purported exercise of power under Section 200A, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring for the appellant had also declared that if the impugned notices under Section 200A are set aside, so far as it relates to computation and intimation for payment of fee under Section 234E, the appellant-petitioners would not press the challenge to the constitutional validity of Section 234E of the Act. But, they submitted that the question of constitutional validity of Section 234E may be kept open to be considered by the Division Bench and the Judgment of the learned Single Judge may not conclude the constitutional validity of Section 234E of the Act. 26. Under these circumstances, we find that no further discussion would be required for examining the constitutional validity of Section 234E of the Act. Save and except to observe tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 234E of the Act. The Hon'ble High Court had not gone into the issue of retrospective operation of provisions of section 234E of the Act. In the circumstances, we direct the ACIT, CPC (TDS), Ghaziabad to delete the levy of penalty u/s. 234E of the Act. 11. In the result, the appeal of the assessee in ITA No. 1818/PUN/2018 for the assessment year 2013-14 stands allowed. ITA No. 1819/PUN/2018, A.Y. 2014-15 12. As mentioned earlier, the facts and issues involved in both the appeals are identical, therefore, our decision in ITA No. 1818/PUN/2018 for the No. 1819/PUN/2018 for the assessment year 2014-15. Accordingly, the appeal of the assessee in ITA No. 1819/PUN/2018 for the assessment year 2014-15 is allowed. 13. Resultantly, both the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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