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TMI Blog2022 (5) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... there is limitation, the Assessing Officer is free to levy fee under section 234E of the Act. Since the limitation to pass intimation had already expired on 31st March 2015, hence no order levying fee can be passed by the Assessing Officer - we hold that the levy of fee under section 234E of the Act by the Assessing Officer while giving effect to the order of the learned CIT(A) is unjustified which is liable to be deleted. We also hold that the fee charged by the Assessing Officer and confirmed by the learned CIT(A) was not in accordance with law. Since the issue is covered by the judicial pronouncements cited supra, therefore, we set aside the impugned orders passed for the assessment year 2013-14 and 2014-15, and allow the grounds of appeal raised by the assessee allowed. - ITA Nos. 9 , 10/Nag./2022 - - - Dated:- 28-4-2022 - Sandeep Gosain , Member ( J ) And Arun Khodpia , Member ( A ) For the Appellant : K. P. Dewani , Advocate For the Respondents : Piyush Kolhe , CIT-DR ORDER Per Arun Khodpia , AM The captioned appeals have been filed by the assessee trust challenging the orders of even date 29th September 2021, passed by the learned Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in figures, which arose out of identical set of facts and circumstances, therefore, as a matter of convenience, these appeals were heard together and are being disposed off by way of this consolidated order. 6. Insofar as grounds no. 3, 4 and 5, raised by the assessee in the assessment years under consideration are concerned, the only issue raised by the assessee is, whether or not the learned CIT(A) was justified in imposing late filing fee payable under section 234E of the Act at ₹ 1,34,576, for the assessment year 2013-14 and ₹ 36,400, for the assessment year 2014-15 respectively. 7. Brief facts are, in the present case, the assessee is a trust. The assessee belatedly filed its quarterly e-TDS statements in Form-26Q for the assessment year 2013-14 and 2015-15. Since there was delay in filing the statements, the Centralized Processing Centre (TDS) while processing them under section 200A of the Act charged late filing fee under section 234E of the Act for different quarters aggregating to ₹ 1,34,576 for the assessment year 2013-14 and ₹ 36,400, for the assessment year 2014-15 respectively. The learned CIT(A) passed appellate order observing that sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fees u/s. 234E. The Hon'ble High Court of Gujarat in the case of Rajesh Kourani vs Union of India 83 taxmann. Com 137 (2017), after distinguishing the decision in the case of Fatheraj Singhvi Vs. Union of India 73 taxmann. Com 252 (Karnataka) (2016) observed that the Sec. 234E was introduced to make TDS provisions stringent which is a charging section and Sec. 200A on the other hand is a machinery provision for making prima facie adjustment. The Hon'ble Court in the case of Rajesh Kourani vs Union of India (supra) held that:- 16, We now come to the petitioner's central challenge viz. of non permissibility to levy fee under section 234E of the Act till section 200A of the Act was amended with effect from 01.06.2015. We have noticed the relevant statutory provisions. The picture that emerges is that prior to 01.07.2012, the Act contained a single provision in section 272A providing for penalty in case of default in filing the statements in terms of section 200 or proviso to section 206C. Such penalty w is prescribed at the rate of Rs. 100 for every day during which the failure continued. With effect from 01.06.2012, three major changes were introduced in the Act. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 234E of the Act. On the other hand, section 234E is a charging provision creating a charge for levying fee for certain defaults in filing the statements. Under no circumstances a machinery provision can override or overrule a charging provision. We are unable to see that section 200A of the Act creates any charge in any manner. It only provides a mechanism for processing a statement for tax deduction and the method in which the same would be done. When section 234E has already created a charge for levying fee that would thereafter not been necessary to have yet another provision creating the same charge. Viewing section 200A as creating a new charge would bring about a dichotomy. In plain terms, the provision in our understanding is a machinery provision and at best provides for a mechanism for processing and computing besides other, fee payable under section 234E for late filing of the statements. 20. Even in absence of section 200A of the Act with introduction of section 234E, it was always open for the Revenue to demand and collect the fee for late filing of the statements. Section 200A would merely regulate the manner in which the computation of such fee would be made and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the A.O. on 26.02.2020 is rejected and the grounds of appeal are dismissed. The assessee being aggrieved by the order passed by the learned CIT(A), once again filed appeals before the Tribunal. 9. Before us, the learned Counsel for the assessee submitted written submissions the contents of which are reproduced below:- 1. Ground No. 3 to 5 : Levy of fee u/s. 234E. A) In the case of assessee for Financial Year 2012-13 and 2013-14 assessee has submitted statement of IDS in the Financial Year 2013-14. In respect to Financial Year 2012-13 it has been submitted on 13/09/2013 and in respect to Financial Year 2013-14 it has been submitted on 29/11/2013. Facts on record make it evident that financial year as well as filing of statement of IDS is before 01/06/2015. B) Hon'ble CIT(A) in his order dated 16/07/2019 has deleted the levy of fee u/s. 234E by following judgment of Hon'ble Karnataka High Court in the case of Fatehraj Singhavi vs UOI reported at 289 CTR 602 (Kar). Such order was not challenged by revenue. C) A.O. has again levied fee u/s. 234E while giving effect to order of CIT(A) dated 16/07/2019 by passing an order on 25/02/2020. D) Nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was filed in respect to order passed by A.O. on 25/02/2020. It was dismissed by National Faceless Appeal Centre vide order dated 29/09/2021 relying on the judgment of Hon'ble Gujarat High Court in the case of Rajesh Kourani vs UOI reported 83 taxmann.com 137. F) Proviso to section 200A(1) of IT. Act 1961 provides that no intimation under this sub-section shall be sent after the expiry of one year from the Financial Year for which statement is filed. 11. The learned Departmental Representative relied upon the order of the authorities below. 12. We have carefully considered the rival contentions, perused the orders of the authorities below and the material placed on record. Before us, this is the second round of litigation. From the record available before us we find that during the first round of litigation on the same issue i.e., charge of late fee under section 234E of the Act, the learned CIT(A) vide order dated 16th July 2019, has directed the Assessing Officer to delete the late filing fee by following the judgment of the Hon'ble Karnataka High Court in Fatehraj Singhavi (supra) and this order was not challenged by the Revenue. The Assessing Officer, whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstance in the arguments of the learned Counsel for the assessee that in assessee's case statements have been filed during the financial year 2013-14 relevant to the assessment year 2014-15 in terms of the provisions of section 200A(1) of the Act and intimation can be passed only within one year from the end of the financial year of filing of statement of TDS. The aforesaid period of the assessee has expired on 31st March 2015. In the order of the learned CIT(A), levy of fee under section 234E was directed to be deleted. It was also directed that if there is limitation, the Assessing Officer is free to levy fee under section 234E of the Act. Since the limitation to pass intimation had already expired on 31st March 2015, hence no order levying fee can be passed by the Assessing Officer. In view of the foregoing discussions and in view of the case laws cited by the learned Counsel for the assessee, we hold that the levy of fee under section 234E of the Act by the Assessing Officer while giving effect to the order of the learned CIT(A) is unjustified which is liable to be deleted. We also hold that the fee charged by the Assessing Officer and confirmed by the learned CIT(A) was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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