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TMI Blog2023 (3) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... f convenience and clarity, the facts relevant to the appeal in ITA No.63/PUN/2023 for the assessment year 2015-16 are stated herein. ITA No.63/PUN/2023, A.Y. 2015-16 : 4. Briefly, the facts of the case are that the Assistant Commissioner of Income Tax, CPC- TDS, Ghaziabad issued an intimation u/s 200A r.w.s. 154 of the Income Tax Act, 1961 ('the Act') for the assessment year 2015-16 levying a late fee under the provisions of section 234E of Rs.2,80,200/- (Rs.82,500 for Q1 + Rs.69,500/- for Q2 + Rs.64,000/- for Q3 + Rs.64,200 for Q4) by stating that the appellant had failed to file the quarterly statement of TDS of first, second, third and fourth quarters for financial year 2014-15 in Form No.24Q. Accordingly, the ACIT, CPC- TDS, Ghaziabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e.f. 01.06.2015. Therefore, late fees u/s 234E of the Act can be levied only prospectively w.e.f. 01.06.2015. The relevant observation of the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi (supra) are extracted hereunder :- "19. Hence, it can be said that, the mechanism provided for enforceability of Section 200(3) or 206C (3) for filing of the statement by making it penal under Section 272A (2) (k) is done away in view of the insertion of Section 271H providing for penal provision for such failure to submit return. When the Parliament has simultaneously brought about Section 234E, Section 271H and the aforesaid proviso to Section 272A(2), it can be said that, the fee provided under Section 234E is contemplated to give a pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect which may be required to be considered before such provisions is held to be retroactive in nature. Further, when any provision is inserted for liability to pay any tax or the fee by way of compensatory in nature or fee 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 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest. 23. In view of the aforesaid observation and discussion, since the impugned intimation given by the respondent-Department against all the appellants under Section 200A are so far as they are for the period prior to 1.6.2015 can be said as without any authority under law. Hence, the same can be said as illegal and invalid. 24. If the facts of the present cases are examined in light of the aforesaid observation and discussion, it appears that in all matters, the intimation given in purported exercise of power under Section 200A are in respect of fees under Section 234E for the period prior to 1.6.2015. As such, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to constitutional validity under Section 234E of the Act. At this stage, we may also record that the learned counsels appearing for the appellant had also declared that if the impugned notices under Section 200A are set aside, so far as it relates to computation and intimation for payment of fee under Section 234E, the appellant-petitioners would not press the challenge to the constitutional validity of Section 234E of the Act. But, they submitted that the question of constitutional validity of Section 234E may be kept open to be considered by the Division Bench and the Judgment of the learned Single Judge may not conclude the constitutional validity of Section 234E of the Act. 26. Under these circumstances, we find that no further discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021. The decision rendered by the Hon'ble Bombay High Court in the case of Rashmikant Kundalia and Others (supra) does not come to the rescue of the Revenue, inasmuch as, the Hon'ble High Court had only upheld the constitutional validity of the provisions of section 234E of the Act. The Hon'ble High Court had not gone into the issue of retrospective operation of provisions of section 234E of the Act. In the circumstances, we direct the ACIT, CPC- TDS, Ghaziabad to delete the late fee being levied u/s 234E of the Act. 9. In the result, the appeal filed by the assessee in ITA No.63/PUN/2023 for A.Y. 2015-16 stands allowed. ITA No.67 to 70/PUN/2023, A.Y. 2015-16 : 10. Since the facts and issues involved in remaining four appeals of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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