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TMI Blog2022 (11) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, for the sake of reference the grounds of appeal raised in ITA No.176/Viz/2021 are extracted herein below for reference: "1. That under the facts and circumstances of the case the order passed by the Ld. CIT(A), NFAC, in ITA No. CIT(A)/Visakhapatnam-2/10346/2019-20, dated 23/08/2021 confirming the order passed U/s. 154 r.w.s 200A of the IT Act dated 19/03/2020 is against the facts of the case and provisions of law. 2. The Ld. CIT (A) erred in confirming the levy of late fee U/s. 234E of the Act while processing the TDS return U/s. 200A of the IT Act for the quarter July to September, 2013 since wef 1/6/2015 section 200A(1) was amended to include clause (c) for levy of fees. Therefore the levy of fees is without authority of law so held by the judiciary in several cases. 3. The Ld.CIT(A) while confirming the levy of late fee relied on the decisions rendered by Hon'ble High Court of Gujarat and Bombay but ignored the decision of Hon'ble Karnataka High Court and other coordinate benches of the Tribunal. This action of the Ld. CIT(A) runs counter to the decision of the Hon'ble Apex court in the case of CIT vs. Vegetable Products Ltd [1973] 88 ITR 192. 4. For these and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport of his view relied on the judgments of the Hon'ble Bombay High Court in the case of Rashmikat Kundalia vs. Union of India (2015) 373 ITR 268 (Bombay) and also the decision of the Hon'ble Gujarat High Court in the case of Rajesh Kourani vs. Union of India (2017) 83 taxmann.com 137 (Gujarat). Thus, the Ld. CIT(A) dismissed the appeal filed by the assessee. Aggrieved by the order of the Ld. CIT(A), NFAC, the assessee filed the present appeal before the Tribunal by raising the above mentioned grounds of appeal. 5. Before me, at the outset, it is the contention of the Ld. Authorized Representative [Ld. AR] that the enabling provision for computation of fee while processing the statements was inserted in section 200A only w.e.f 1/6/2015 and therefore, the charging section i.e., section 234E cannot be enforced prior to 1/6/2015. The Ld. AR further submitted that the amended provision applies for all the returns pertaining to the period after 1/6/2015 and not for the returns pertaining to the period prior to 01/06/2015 notwithstanding the fact that the returns pertaining to the period prior to 01/06/2015 were filed after 01/06/2015 or processed after 01/06/2015. The Ld. AR further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a late fee of Rs. 15,800/- was levied on account of default in furnishing the statements beyond the prescribed time limit under the Act. The Ld. DR further submitted that the fee charged U/s. 234E is not in lieu of penalty as the fee charged under section 234E is not in the nature of penalty and is a fee which the deductor shall be liable to pay in the event of delay in filing the TDS statements as prescribed. The Ld. DR further submitted that the Fee charged U/s. 234E is a fixed fee charged in the case of statements are rendered beyond the stipulated time which is happened in the instant case. The Ld. DR also submitted that it is rightly observed by the Hon'ble Bombay High Court in the case of Rashmikant Kundalia vs. Union of India (supra) "because of late filing of TDS statements Department is overburdened with extra work which is otherwise not required if the TDS statements are furnished within the prescribed time limit." The Ld. DR also heavily relied on the decision of the Hon'ble Gujarat High Court in the case of Rajesh Kourani vs. Union of India (supra) for the proposition that "a machinery provision (section 200A) cannot override the substantive provision of law". The Ld. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Fatheraj Singhvi vs. Union of India [2016] 73 taxmann.com 252 (Karnataka) observed that "one may at the first blush say that, since the section 234E is a charging section for fee, the liability was generated or had accrued, if there was failure to deliver or cause to be delivered the statement/s of TDS within the prescribed time. But section 234E cannot be read in isolation and is required to be read with the mechanism and the mode provided for its enforcement......". The observations and relevant held portions in the judgment of the Hon'ble Karnataka High Court (supra) are extracted herein below for reference: "21. However, if Section 234E providing for fee was brought on the state book, keeping in view the aforesaid purpose and the intention then, the other mechanism provided for computation of fee and failure for payment of fee under Section 200A which has been brought about with effect from 1.6.2015 cannot be said as only by way of a regulatory mode or a regulatory mechanism but it can rather be termed as conferring substantive power upon the authority. It is true that, a regulatory mechanism by insertion of any provision made in the statute book, may have a retroactive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest." 10. Further, the Hon'ble Kerala High Court in the case of United Metals vs. ITO (TDS) reported in [2022] 137 taxmann.com 115 (Kerala) observed as under: "Amendment in section 200A by way of incorporating sub-clause (c) to clause (f) which referred to computation of fee payable under section 234E was brought into effect from 1/6/2015, therefore, demand raised for levying late fee under section 234E for period prior to 1/6/2016 would not be sustainable." 11. The Pune Bench of the Tribunal vide its order dated 25/10/2018 in the case of Medical Superintendent Rural Hospital, Nashik vs. DCIT, CPC (TDS) (supra), has observed as under: "16..............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 the 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, 2015. Accordingly...............the demand raised by charging late fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re filed by the assessee against the orders of the Ld. CIT(A), NFAC, Delhi arising out of the orders passed U/s. 154 r.w.s 200A of the Act for the AY 2015-16. 17. The issue involved in all these appeals is whether the returns pertaining to the period prior to 01/06/2015 but filed after 01/06/2015 and processed after 01/06/2015 attract the amended provisions of section 200A read with section 234E inserted w.e.f 01/06/2015 which is a specific provision for levy of fee for default in furnishing the TDS statements belatedly. This issue is identical to that of the one decided by me while adjudicating the appeal of the assessee in ITA No. 176/Viz/2021 in the above paragraphs of this order. Since there is no change in the facts as well as the issue involved is the same, my decision given while adjudicating the appeal ITA No. 176/Viz/2021 mutatis mutandis applies to the present appeals also. Accordingly, the grounds raised by the assessee in all these appeals are allowed. 18. In the result, all these appeals filed by the assessee pertaining to AY 2015-16 (ITA Nos. 165, 166, 167, 168, 169, 170, 171, 172, 173, 174 and 175/Viz/2021& 20/Viz/2022) are allowed. ITA No. 164/Viz/2021 (AY: 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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