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TMI Blog2024 (1) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... t for injustice being done because of non deliberate delay. See MST. KATIJI AND OTHERS [ 1987 (2) TMI 61 - SUPREME COURT] Fee imposed u/s 234(E) for delay in filing the TDS return - CPCTDS while processing the return wrongly charged fee u/s 234E for belatedly filing the TDS return. The Act has been amended from 01/06/2015 and prior to this period, levy of fee was in the statute book, therefore, the assessee is not liable for the period till 01/06/2015 and the issue is squarely covered in favour of the assessee by the decision of jurisdictional High Court in the case of Fatheraj Singhvi [ 2016 (9) TMI 964 - KARNATAKA HIGH COURT] - Shri George George K, Vice President And Shri Laxmi Prasad Sahu, Accountant Member For the Assessee : Shri Hemant Pai, C.A For the Revenue : Shri Nischal B, Addl. CIT (DR) ORDER PER BENCH All these appeals are filed by the assessee against the separate orders passed by the CIT(A), which is as under:- S.No. ITA Nos. Asst. Year 1 882/Bang/2023 2014-15 2 883/Bang/2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file the present appeals before this Tribunal. 7. On merits of the case, the Ld.DR submitted that the issue has not been considered by the Ld.CIT(A) who dismissed the appeals in limine by not condoning the delay caused in filing the appeals. However, he admitted to the fact that the merits of the case is covered by the decision of Hon'ble Karnataka High Court in case of v. UOI reported in [2016] 73 taxmann.com 252. However he submitted that the revenue preferred SLP before the Hon'ble Supreme Court against the decision of Hon'ble Karnataka High Court and that he relied on the orders passed by the authorities below. 8. We have perused the submissions advanced by both sides in the light of records placed before us. On merit, the issue is in favour of assessee as per the ratio of Hon`ble Karnataka High Court in case of Fatehraj Singhvi v. UOI (supra). But there is a technical defect as in all the appeals before us are not filed within the period of limitation. The assessee has filed an affidavit establishing the cause for the inability to file the present appeals. Revenue has not denied the averments made by the assessee in the affidavit. 9. The Ld. DR submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taken for considering the sufficiency of course. We are satisfied with the reasons explained by the assessee that due to bonafide mistake and inadvertence, the appeal could not be filed within the period of limitation. Accordingly, in the interest of Justice we condone the delay of 496 days in filing the present appeal. 12. Hon'ble Madras High Court in case of Sreenivas Charitable Trust vs. DCIT reported in 280 ITR 357 observed that the expression sufficient cause should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is the prime factor while considering the reasons for condoning the delay. 13. Further Hon'ble Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of convenience, the principles laid down by the Apex Court are reproduced hereunder: (1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late (2) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can hap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. Hon'ble Madras High Court in the case of CIT v. K.S.P. Shanmugavel Nadai and Ors. reported in 153 ITR 596 considered the delay of condonation and held that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation. Accordingly, the Hon'ble Madras High Court condoned nearly 21 years of delay in filing the appeal. 17. Further Hon'ble Madras High Court in the case of Sreenivas Charitable Trust (supra) held that no hard and fast rule can be laid down in the matter of condonation of delay and the Court should adopt a pragmatic approach and the Court should exercise their discretion on the facts of each case keeping in mind that in construing the expression sufficient cause the principle of advancing substantial justice is of prime importance and the expression sufficient cause should receive a liberal construction. 18. In the present facts of the case, the sufficient cause has been made out by the assessee in the affidavits substantiating the delay in filing the present appeals before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar; (iii) 31st December - 15th January of the financial year; and (iv) 31st March - 15th May of the following financial year.[Para 8] It may be recorded that section 200(3) requiring to file formal TDS statement within the aforesaid each quarter was inserted on 1-4-2005 and at the relevant point of time, section 272A(2)(k) provided for the penalty of Rs. 100 per day for each day of default in filing TDS statement and such provision also came to be inserted with effect from 1-4-2005. On 1-42010, section 200A was inserted providing for the processing of the TDS statement and the consequent issuance of the intimation to the deductor, the same determined as payable by it or refundable by it. But, the relevant aspect is that, in initial provisions of section 200A, there was no reference for fee payable under section 234E.[Para 9] On 1-7-2012, section 234E providing for levying of fee of Rs. 200 per day for each day of default in filing TDS statement was inserted.[Para 10] Similarly, section 271H was inserted with effect from 1-7-2012 providing for imposition of penalty for default in filing TDS statement and also for furnishing of incorrect information in such TDS stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (3) of section 271 H. Hence, it can be said that the fee provided under section 234E would take out from the rigors of penalty under section 271 H but of course subject to the outer limit of one year as prescribed under sub-section (3) of section 271H. It can also be said that when the Parliament intended to insert the provisions of section 234E providing for fee simultaneously the utility of such fee was for conferring the privilege to the defaulter deductor to come out from the rigors of penal provision of section 271H. Be it recorded that, prior to section 271H inserted in the statute book, the enforceability of requirement to file return under section 200(3) and section 206C(3) was by virtue of section 272A(2)(k) which provided for the penalty of Rs. 100 per day for each day of default in filing TDS statements. But, when section 234E was inserted with effect from 1-72012 simultaneously, a second proviso was added under section 272A(2) with effect from 1-72012.[Para 17] The aforesaid shows that in the clause (k) if the said failure relates to a statement referred to in sub-section (3) of section 200 or the subsection (3) of section 206C, no penalty shall be imposed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined. 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 271 H(3) that too by expressly putting 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, the contention of the respondent-revenue that insertion of clauses (c) to (f) under section 200A(1) should be treated as retroactive in character and not prospective is unacceptable.[Para 21] It is hardly required to be stated that, as per the well established principles of interpretation of statute, unless it is expressly provided o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 234E, the same has necessitated the appellant to challenge the constitutional validity of section 234E. When the intimation of the demand notices under section 200A is held to be without authority of law so far as it relates to computation and demand of fee under section 234E, it is found that the question of further scrutiny for testing the constitutional validity of section 234E would be rendered as an academic exercise because there would not be any cause on the part of the petitioners to continue to maintain the challenge to constitutional validity under section 234E. At this stage, it may also be recorded that 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. 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 Single fudge may not conclude the constitutional validity of section 234E .[Para 25] Under these circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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