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TMI Blog2022 (11) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 - - - Dated:- 14-10-2022 - Shri M. Balaganesh, Accountant Member And Shri Rahul Chaudhary, Judicial Member For the Appellant/Assessee : Shri Ishaan Patkar For the Respondent/Department : Shri Tejinder Pal Singh ORDER PER BENCH: 1. These are three appeals by the Assessee. The solitary identical issue raised in all the appeals is directed against the levy of fee under Section 234E of the Income Tax Act, 1961 ( the Act ). All the appeals were, therefore, taken up together and are being disposed by way of this common order. The appeals are taken as being filed within limitation in view of the order dated 10.01.2022 passed by the Hon ble Supreme Court in suo moto Writ Petition (C) No. 3 of 2022. ITA No. 338/Mum/2022 (Assessment Year 2013-14) 2. This is the appeal preferred by the Appellant/Assessee against the order of the Commissioner of Income Tax (Appeals)-National Faceless Appeals Centre [hereinafter referred to as the CIT(A) ] dismissing appeal wherein the Appellant/Assessee had called into question the correctness the levy of late fees under Section 234E of the Act by way of intimation issued under Section 200A of the Act on processing of St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Union of India (supra) had also laid down similar proposition that the amendment to section 200A of the Act w.e.f. 01.06.2015 has prospective effect and is not applicable for the period of respective assessment years prior to 01.06.2015. The relevant findings of the Hon ble High Court are in paras 21 and 22, which read as under:- 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 character but, whether such provision provides for a mere regulatory mechanism or confers substantive power upon the authority would also be a aspect which may be required to be considered before such provisions is held to be retroactive in nature. Further, when any provision is inse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to 01.06.2015, then same were illegal and invalid. Vide para 27, it was further held that the impugned notices under section 200A of the Act were for computation and intimation for payment of fees under section 234E of the Act as they relate for the period of tax deducted at source prior to 01.06.2015 were being set aside. 15. In other words, the Hon ble High Court of Karnataka explained the position of charging of late filing fees under section 234E of the Act and the mechanism provided for computation of fees and failure for payment of fees under section 200A of the Act which was brought on Statute w.e.f. 01.06.2015. The said amendment was held to be prospective in nature and hence, notices issued under section 200A of the Act for computation and intimation for payment of late filing fees under section 234E of the Act relating to the period of tax deduction prior to 01.06.2015 were not maintainable and were set aside by the Hon ble High Court. In view of said proposition being laid down by the Hon ble High Court of Karnataka (supra), there is no merit in observations of CIT(A) that in the present case, where the returns of TDS were filed for each of the quarters after 1 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the jurisdictional High Court. The Hon ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (2015) 54 taxmann.com 200 (Bom) had decided the constitutional validity of provisions of section 234E of the Act and had held them to be ultra vires but had not decided the second issue of amendment brought to section 200A of the Act w.e.f. 01.06.2015. In view thereof, respectfully following the ratio laid down by the Hon ble High Court of Karnataka and Pune Bench of Tribunal in series of cases, we delete the late filing fees charged under section 234E of the Act for the TDS returns for the period prior to 01.06.2015. 18. Further before parting, we may also refer to the order of CIT(A) in the case of Junagade Healthcare Pvt. Ltd., where the CIT(A) had dismissed appeals of assessee being delayed for period of December, 2013 and July, 2014. The CIT(A) while computing delay had taken the date of intimation under section 200A of the Act as the basis, whereas the assessee had filed appeals before CIT(A) against the order passed under section 154 of the Act. The CIT(A) had noted that rectification application was filed in February, 2018 which was rejected by CPC on the same day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITAT, Amritsar in the case of Tata Rice Mills Vs. ACIT (CPC), TDS Ghaziabad (ITA No. 395/ASR/2016; dated 25.10.2017. In the aforementioned case, it was observed by the Tribunal that the assessee had filed its statement of tax deduction at source for the second quarter relevant to Financial year 2014- 15 on 19th June, 2015, which was thereafter processed on 23.06.2015 by the ACIT-TDS, CPC and a late fee under Sec. 234E of Rs. 49,400/- was charged in the intimation issued under Sec. 200A of the I.T. Act. It was observed by the Tribunal that as the amendment made under Sec.200A was effective from 01.06.2015 and applicable prospectively, hence no computation of fee under Sec.234E could be made for the TDS deducted prior to 01.06.2015. 7. We have given a thoughtful consideration to the issue before us and finding ourselves as being in agreement with the view taken by the Tribunal in the case of Tata Rice Mills (supra), hence are of the considered view that the ACIT-TDS, CPC Ghaziabad in the case before us had erred in levying fees under Sec.234E in respect of tax deducted at source for the four quarters prior to 01.06.2015 in respect of the captioned years viz. A.Y. 2013-14, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 10/12/2019), Lawmen Concepts Pvt. Ltd. Vs. Dy.CIT, CPC-TDS: ITA No. 5140-5143/Mum/2018 [10.01.2020] and Shri Vivek J Thar, legal heir and son of Shri Jayesh Thar vs. ITO-TDS Ward, Kalyan [ITA No. 1476/Mum/2022 to 1479/Mum/2022, Assessment Year 2013-14, pronounced on 19.09.2022] wherein the Tribunal has, following the judgment of the Karnataka High Court in the case of Fatehraj Singhvi (supra), deleted the late fee levied under Section 234E of the Act. 10. Respectfully following the above decision of the Tribunal, we delete levy of late fees of INR 40,000/- for Assessment Year 2013-14, demanded under Section 234E of the Act. Ground No. 1 raised in the appeal is allowed. In result the present appeal is allowed. ITA No. 337/Mum/2022 (Assessment Year 2014-15) ITA No. 339/Mum/2022 (Assessment Year 2015-16) 11. The appeals for the Assessment Year 2014-2015 and 2015-16 involve issues identical to the issue raised in appeal for the Assessment Year 2013-14. Accordingly, in view of the reasoning/finding giving in paragraph 7 to 10 above, Ground No.1 raised in the respective appeals for the Assessment Year 2014-15 and 2015-16 are allowed. Late fees of INR 2,00,855/- for As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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