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TMI Blog2022 (12) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the and read out the contents of the affidavit which read as under: "1........ 2.........During the relevant period the chartered accountant was busy in attending to tax audits and therefore he could not prepare the appeal in time. 3. Thus, the delay of 4 days in filing the appeal was beyond the control of the appellant and was neither intentional nor deliberate. Hence, it is prayed that the said delay of 4 days in filing the appeal may kindly be condoned in the interest of substantial justice." 3. After hearing the Ld. AR and on perusal of the contents of the affidavit filed by the assessee we are of the considered view that the delay of 4 days in filing all the present appeals beyond the prescribed time limit is not attributable to the assessee nor deliberate. Therefore, we hereby condone the delay of 4 days in filing all the instant appeals and proceed to adjudicate the appeals on merits. 4. In all the instant appeals, since the assesse has raised three identical grounds, the grounds raised by the assessee for the AY 2015-16 in ITA No. 190/Viz/2022 are extracted herein below for the sake of reference: "1. The CPC-TDS is not correct in levying the late filing fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing 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 submitted that in the present cases, the due date for filing the TDS returns falls before the specified date of 1/6/2015 and therefore section 234E cannot be enforced since it is prior to 1/6/2015. The Ld. AR therefore submitted that the Ld. Revenue Authorities erred in levying and confirming the levy of late fee U/s. 234E of the Act while processing the TDS return U/s. 200A of the Act for the relevant period under consideration. In support of his view the Ld. AR relied on the judgment of the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi vs. Union of India [2016] 73 taxmann.com 252 (Karnataka); judgment of the Hon'ble Kerala High Court in the case of Unite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rises in this appeal is whether TDS returns pertaining to the period prior to 01/06/2015, if filed after 01/06/2015 and processed after 01/06/2015 whether they attract the amended provisions of Finance Act, 2012 and the specific provision for levy of "fee" under section 234E of the Act which was inserted w.e.f 1/6/2015. In the present case the due date for filing its TDS statement for the Q1 of FY 2014-15 in Form No. 26Q is 30/06/2014 which falls within the specified date of 1/6/2015 ie., insertion of the new provisions but the assessee filed its TDS returns on 27/11/2015 ie., beyond the due date for filing the TDS returns. The Ld. AO treating this filing / furnishing of TDS statement as a default since it is not filed within the stipulated time as per the TDS provisions and imposed late fees u/s. 234E amounting to Rs. 1,00,000/- and passed order U/s. 200A of the Act dated 01/12/2015. On appeal, the Ld. CIT(A) dismissed the appeal of the assessee due to belated filing of the appeal and held that the reasons given by the assessee do not constitute sufficient and reasonable cause for the belated filing of the appeals. Aggrieved by the order of the Ld. CIT(A), the assessee filed the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 be treated as retroactive in character and not prospective. 22. It is hardly requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for filing the returns for Q1 of FY 2014-15 is 30/06/2014. Since the period under consideration is the 1st Quarter of FY 2014-15 ie., prior to the amendment to section 200A(1) of the Act wherein clause (c) was inserted w.e.f 01/06/2015 and the assessee had already deposited the tax at source prior to the amendment to section 200A(1), the levy of late fee u/s. 234E for default in furnishing the statement beyond the stipulated time is not sustainable in law. Further, respectfully following the ratio laid down in the judgment deliverd by the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi (supra); judgment of the Kerala High Court in the case of United Metals (supra) and various decisions of the Tribunal (supra), I am of the view that the levying of late fee under section 234E for the period prior to 1/6/2015 is not sustainable in law. 14. Thus, in the instant case since the period of default was before the said date ie., 01/06/2015, there is no merit in charging late filing fee U/s. 234E of the Act. Accordingly the Ld. AO is directed to delete the fee levied U/s. 234E of the Act in the order passed U/s. 154 r.w.s 200A of the Act Thus, the grounds raised by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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