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TMI Blog2023 (6) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-6-2023 - SHRI SANJAY ARORA , AM AND SHRI ABY T. VARKEY , JM For the Assessee : None For the Revenue : Smt J. M Jamuna Devi, (Sr. AR) ORDER PER BENCH These are appeal preferred by the assessee against the order of the Ld. CIT(A)/NFAC dated 14.10.2022 for AY. 2013-14 2014-15 (for Q3 Q1 of FY. 2012-13 2013-14 respectively) confirming the order u/s 234E of the Income Tax Act, 1961 (hereinafter the Act ). 2. At the outset, it is noted that the issue in both these appeals are regarding levy of late fee u/s 234E of the Act; and main plea of the assessee against the imposition of late fees u/s 234E of the Act is that since the cause of action in both the appeals took place before 01.06.2015, the levy of late fee u/s 234E of the Act is bad in law since the Hon ble Jurisdictional High Court in the case of M/s. Sarala Memorial Hospital Vs. Union of India held that the amendment brought in by insertion of clause C in section 200A(1) of the Act [Processing of statements of tax deducted at source] is prospective in nature; and that only post 01.06.2015, processing of return entails levy of late fee as envisaged u/s 234E of the Act. It would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is inconsistent with another entry of the same other item in such statement; (ii) in respect of rate of deduction of tax at source, where such rate 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.] 7. Later through Finance Act, 2015 with effect from 01.06.2015, among other things, clause (c) was added, with other consequential changes. Now, with the amendment, the provision has this addition: (c) the fee, if any, shall be computed in accordance with the provisions of Section 234E 8. In fact, Section 234E affects the proceedings. Therefore, it prays to examine that provision as well. And it reads: 234E-Fee for default in furnishing statements:- (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-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements. Under no circumstances a machinery provision can override or overrule a charging provision. Section 200A does not create any charge in any manner. It only provides a mechanism for processing q statement for tax deduction and the method in which the same, would be done. When Section 234E has already created a charge for levying fee that would thereafter not have been necessary to have another provision creating the same charge. Viewing Section 200A as creating a new charge would bring about, dichotomy. In plain terms, the provision is a machinery provision and at best provides for a mechanism for processing and computing besides other, fee payable under section 234E for late filing of the statements 11. There is cleavage in judicial opinion. But I am afraid, elaborate s the judgment may be in Rajesh Kourani, it does not seem to have considered the Circular No. 19 of 2015, which in para no. 47.3 clarifies: 47.3 Finance (No.2) Act, 2009 inserted section 200A in the Income-tax Act which provides for processing of TDS statements for determining the amount payable or refundable to the deductor. However, as section 243E was inserted after the insertion of section 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to above, we are of the view that the appeal at the instance of second respondent is without merit and is liable to be dismissed. Accordingly dismissed. 4. Further, the Hon ble Division Bench of the High Court (Ker) held as under: - 9.1 Stated briefly, the writ petitioner challenges the intimation received under section 200A from the respondent/Revenue calling upon the writ petitioner to pay late fee for delayed filing of quarterly statements of TDS. The periods for which the notices are issued are stated as prior to 1-6-2015. By following the judgment in W.P.(C) No. 37775/2018, as confirmed in W.A. No. 722/2019, the writ petition stands allowed and the intimations dealing with filing of belated statements prior to 1- 6-2015 are set aside. A return filed subsequent to 1-6-2015 is present, the respondents are given liberty to issue notice, hear the writ petitioner, and pass orders in accordance with law. The writ petition is allowed as indicated above. 5. It thus stands clarified by the binding decision of jurisdictional High Court that no late filing fee could be levied for processing u/s. 200A(1) for any period prior to 01.6.2015. In the light of the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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