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TMI Blog2023 (2) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... charging section, in the sense that imposes a burden on an Assessee. In that view of the matter, we are of the view that the reliance placed by the NFAC, on the decision of Hon ble Supreme Court in the case of M/S.Dilip Kumar Co. (supra) to sustain the levy of interest u/s.234-E of the Act, cannot be sustained. We are of the view that the levy of interest u/s.234E of the Act in the present case cannot be sustained and the same is directed to be deleted and the appeals of the Assessee are allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-Jun-22 01-08-2022 ITA 614/Bang/2022 CHIKMAGALUR BLRK12441C 2012-13 26Q Q3 8200 NFAC/2011- 12/10069882 10-Jun-22 01-08-2022 ITA 615/Bang/2022 CHIKMAGALUR BLRK12441C 2012-13 26Q Q4 7400 NFAC/2011- 12/10069709 10-Jun-22 01-08-2022 ITA 616/Bang/2022 CHIKMAGALUR BLRK12441C 2013-14 26Q Q3 43200 NFAC/2012- 13/10069352 10-Jun-22 01-08-2022 ITA 617/Bang/2022 CHIKMAGALUR BLRK12441C 2014-15 26Q Q1 5800 NFAC/2013- 14/10066673 10-Jun-22 01-08-2022 ITA 618/Bang/2022 CHIKMAGALUR BLRK12441C 2014-15 26Q Q2 2800 NFAC/2013- 14/10066669 10-Jun-22 01-08-2022 ITA 619/Bang/2022 DEVARAPURA BLRK12431G 2013-14 26Q Q4 16600 NFAC/2012- 13/10069355 20-Jun-22 01-08-2022 ITA 620/Bang/2022 DODDABALLAPURA BLRK12519D 2012-13 26Q Q4 11600 NFAC/2011- 12/10068098 17-Jun-22 01-08-2022 ITA 621/Bang/2022 DODDABEMMATHI BLRK12317E 2013-14 26Q Q4 10000 NFAC/2012- 13/10069331 17-Jun-22 01-08-2022 ITA 622/Bang/2022 DODDATHOGUR BLRK12282E 2013-14 26Q Q1 7200 NFAC/2012- 13/10069332 14-Jun-22 01-08-2022 ITA 623/Bang/2022 SIRA BLRK12435D 2013-14 26Q Q4 23200 NFAC/2012- 13/10069353 20-Jun-22 01-08-2022 ITA 624/Bang/2022 NARASI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012-13 26Q Q4 1600 NFAC/2011- 12/10069714 14-Jun-22 01-08-2022 ITA 646/Bang/2022 PANCHAYATH BLRK12358D 2014-15 26Q Q2 47794 NFAC/2013- 14/10067258 14-Jun-22 01-08-2022 ITA 647/Bang/2022 GUBBI BLRK12414D 2013-14 26Q Q4 1600 NFAC/2012- 13/10069166 17-Jun-22 01-08-2022 ITA 648/Bang/2022 GUNDLUPET BLRK12384B 2014-15 26Q Q4 12400 NFAC/2013- 14/10067256 28-Jun-22 01-08-2022 ITA 649/Bang/2022 HEBBAL BLRK12167B 2013-14 26Q Q3 281200 NFAC/2012- 13/10069336 09-Jun-22 01-08-2022 ITA 650/Bang/2022 HEBBAL BLRK12167B 2014-15 26Q Q3 208200 NFAC/2013- 14/10066810 09-Jun-22 01-08-2022 ITA 651/Bang/2022 HIREMAGALUR BLRK12356B 2012-13 26Q Q3 4800 NFAC/2011- 12/10069715 17-Jun-22 01-08-2022 ITA 652/Bang/2022 HIRISAVE BLRK13010E 2013-14 26Q Q3 1600 NFAC/2012- 13/10069163 14-Jun-22 01-08-2022 ITA 653/Bang/2022 HIRISAVE BLRK13010E 2014-15 26Q Q2 2600 NFAC/2013- 14/10067253 14-Jun-22 01-08-2022 ITA 654/Bang/2022 HOSAKOTE BLRK12402F 2014-15 26Q Q2 4391 NFAC/2013- 14/10067255 17-Jun-22 01-08-2022 ITA 655/Bang/2022 HUSKUR BLRK12244B 2012-13 26Q Q4 29400 NFAC/2011- 12/10069719 20-Jun-22 01-08-2022 ITA 656 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te fee u/s. 234E of the Income- Tax Act, 1961 ["the Act"]. Under Sec.234E of the Act, if there is a delay in filing statement of TDS within the prescribed time then the person responsible for making payment and filing return of TDS is liable to pay by way of fee a sum of Rs.200/- per day during which the failure continues. Section 234E of the Act inserted by the Finance Act, 2012 w.e.f. 1.7.2012. reads as follows:- "Fee for default in furnishing statements. 234E. (1) Without prejudice to the provisions of the Act, where a person fails to deliver or cause to be delivered a statement within the time prescribed in sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C, he shall be liable to pay, by way of fee, a sum of two hundred rupees for every day during which the failure continues. (2) The amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be. (3) The amount of fee referred to in sub-section (1) shall be paid before delivering or causing to be delivered a statement in accordance with sub-section (3) of section 200 or the proviso to subsection (3) of section 206C. (4) The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of an entry, in the statement- (i) of an item, which is inconsistent with another entry of the same or some other item in such statement; (ii) in respect of rate of deduction of tax at source, where such rate is not in accordance with the provisions of this Act. (2) For the purposes of processing of statements under sub-section (1), the Board may make a scheme for centralised processing of statements of tax deducted at source to expeditiously determine the tax payable by, or the refund due to, the deductor as required under the said sub-section." 4. Clause (c) to (f) of section 200A(1) was substituted by the Finance Act, 2015 w.e.f. 1.6.2015. The assessee contended before NFAC (CIT(A)/first appellate authority) that AO could levy fee u/s.234E of the Act while processing a return of TDS filed u/s.200(3) of the Act only by virtue of the provisions of Sec.200A(1)(c), (d) & (f) of the Act and those provisions came into force only from 1.6.2015 and therefore the authority issuing intimation u/s. 200A of the Act while processing return of TDS filed u/s.200(3) of the Act, could not levy fee u/s. 234E of the Act in respect of statement of TDS filed prior to 1.6.2015. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Appeal No.3327 of 2007 dated 30.7.2018 wherein the Hon'ble Supreme Court held Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. The NFAC/CIT(A) therefore upheld the levy of interest u/s.234E of the Act on the ground that if return of TDS is filed after 1.6.2015, then levy of interest u/s.234- E is valid. Thus the NFAC/CIT(A) took the view that the date of filing of the TDS return would be material to decide whether the levy of late fee u/s.234-E of the Act, is valid or not. 6. Aggrieved by the order of the CIT(A), the Assessee has preferred appeals before the Tribunal. We have heard the submission of the learned counsel for the Assessee who submitted that the decision of the Hon'ble Karnataka High Court being the decision of the jurisdictional High Court ought to have been followed by the NFA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior Tribunal that all the Tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer." 9. In the case of Mahadev Cold Storage Vs. AO ITA No.41 & 42/Agr/2021 order dated 14.6.2021, it was held that although a centralized NFAC had been created by the notifications, it had to be ensured that where an appellate order was passed by the NFAC, the decision of the jurisdictional high court with jurisdiction over the AO should be followed and applied by the NFAC. Relief should not be refused to the taxpayer merely because there was a conflicting decision of a non-jurisdictional high court. It was held that an appeal against the decision of the Agra ITAT would be before the Allahabad High Court; therefore, the decision rendered by that court was binding not only on the ITAT but also on the NFAC (notwithstanding that it is was sitting in Delhi) that was deciding the issue pertaining to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any ambiguity in a taxing statute should enure to the benefit of the subject / assessee. On the contrary, any ambiguity in the exemption clause must be conferred in favour of revenue and such exemption should be allowed to be availed only to those subjects / assesses who demonstrate that a case for exemption squarely falls within the parameters enumerated in the notification and they satisfy all the conditions precedent for availing exemption. The levy of late fee u/s.234-E of the Act, cannot be said to be an exemption clause but can be construed only as a charging section, in the sense that imposes a burden on an Assessee. In that view of the matter, we are of the view that the reliance placed by the NFAC, on the decision of Hon'ble Supreme Court in the case of M/S.Dilip Kumar & Co. (supra) to sustain the levy of interest u/s.234-E of the Act, cannot be sustained. 11. In the light of the above discussion, we are of the view that the levy of interest u/s.234E of the Act in the present case cannot be sustained and the same is directed to be deleted and the appeals of the Assessee are allowed. 12. In the result, the appeals are allowed. Pronounced in the open court on the 05.09. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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