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TMI Blog2022 (6) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... f intimation u/s 154 of the Act for the purpose of computing the limitation period. Admittedly, and, undisputedly, the appeals before the NFAC were within time if we take the date of intimation u/s 154 of the Act. NFAC was patently incorrect in out-rightly rejecting the assessees appeals by treating them as time barred by calculating the limitation period from the date of intimation u/s 200A of the Act, rather than by taking the date of intimation u/s 154 of the Act for the purpose of adjudication. Contention of the Department that there was no mistake apparent on the face of record which could be rectified u/s 154 of the Act by the AO - In our considered view, since the levy of late fee u/s 234E in the intimation u/s 200A was contrary to the settled law in numerous cases, the same was binding on the lower authorities as has been held in the case of Bank of Baroda Vs. H.C. Shrivastava [ 2001 (7) TMI 21 - BOMBAY HIGH COURT] wherein it was held that not following the binding decision is a mistake apparent from the record which should have been rectified by way of an order u/s 254 of the Act. Accordingly, we reject this contention of the Department and proceed to adjudicate the issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 256 257/CHD/ 2022, 258 259/CHD/ 2022, 260/CHD/2022, 261 262/CHD/ 2022, 263 264/CHD/ 2022, 265 to 267/CHD/ 2022 SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER For the Assessee by : Sh. Pratik Sadrani, CA For the Revenue by : Smt. Priyanka Dhar, Sr. DR PER BENCH: These bunch of appeals have been preferred by the captioned Assessees against the respective orders of the National Faceless Appeal Centre (NFAC), Delhi as per the details given below:- ITA Nos. Appeal by CIT(A) / NFAC order dated 105/Chd/ 2022 to 235/Chd/2022 Assessee 28.09.2021 236/Chd/2022 Assessee 11.10.2021 237/Chd/ 2022 to 267/Chd/2022 Assessee 28.09.2021 1.1 Since common issues were involved in these bunch of appeals, they were heard together and are now being disposed off through this common order for the sake of convenience. 1.2 At the outset, the Ld. Authorised Representative (AR) submitted that ITA No. 105/Chd/2022 may be taken as the lead case in this bunch of appeals. 1.3 The Ld. Departmental Representative (DR) had no objection to this submission of the Ld. AR. Accordingly, ITA No.105/Chd/2022 is being taken as a lead case in this bunch of appeals. 2.0 The Ld. AR submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice. The Ld. AR submitted that these Branches being part of a Regional Rural Bank (RRB) were also not equipped with the State of Art Communication Equipment like high-speed internet and computers etc. Thus, all these factors went into causing delay in late filing of the appeals. The Ld. AR prayed that in the interest of substantial justice, the captioned appeals should be admitted to be heard on merits. 4.0 Per contra, the Ld. Sr.DR opposed the assessee s prayer for condonation of delay and submitted that the provisions of Income Tax law are the same for every one and just because the assessee did not have a suitable infrastructure to file the appeals in time, the same should not be condoned as the assessee should have been more alert and careful about its rights and duties vis- -vis the various laws. The Ld. Sr. DR submitted that condoning the delay on such flimsy grounds would set a bad precedent for other defaulters also. 5.0 We have heard the rival submissions and have also perused the contents of Applications for condonation of delay and it is our considered view that no assessee would be benefitted by intentionally delaying the filing of appeals and as per the explanation g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay. 5.1 Similarly, the Hon'ble Apex Court in the case of N.Balakrishnan Vs. M. Krishnamurthy, vide Judgement dated 03.09.1998, opined that a Court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. The Court went on to opine that in every case of delay there can be lapse on the part of the litigants concerned but that alone is not enough to turn down his plea and shut the door against him. The Hon'ble Apex Court furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee had sought to be rectified because the late filing fee u/s 234E had been levied on various assessees for the periods which were prior to 01.06.2015 which was in the very teeth of the various judicial pronouncements across the country wherein it had been held that no late fee was leviable u/s 234E for periods prior to 1st June, 2015. The Ld. AR drew our attention to a paper book containing numerous judicial precedents in favour of the assessee wherein it has been held that no levy u/s 234E of the Act can be imposed for late filing of TDS returns prior to 01.6.2015. The Ld. AR fairly accepted that the Hon'ble Gujarat High Court had ruled against the assessee on the issue but submitted that the Hon'ble Karnataka High Court had decided the issue in favour of the assessee. It was also submitted by the Ld. AR that there was no judgement of the Hon'ble Jurisdictional High Court on the issue. The Ld. AR relied on the judgement of the Hon'ble Apex Court in the case of CIT Vs. Vegetable Products Ltd. 88 ITR 192 (SC) and another judgement of the Hon'ble Apex Court in the case of CIT Vs. Vatika Township Pvt Ltd [2014] 367 ITR 466 (SC) wherein it has been held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the NFAC in the case of Chamba Branch of the Bank for assessment year 2015-16 and submitted that here the NFAC had accepted the assessee s appeal u/s 154 of the Act and had allowed the assessee s appeal by holding that no late fee was leviable u/s 234E of the Act. It was submitted that there were 191 similar orders and, thus, apparently there was a diversion in the view taken by the NFAC on the issue. 8.0 We have heard the rival submissions and have also perused the material on record. The facts are not in dispute. The essential question for us to consider is whether (1) NFAC has rightly rejected the assessees appeals against intimation u/s 154 of the Act; and (2) If the same has not been rightly rejected, whether the NFAC was right in dismissing the assessees appeals without considering the merits of the case. 8.1 The assessee has filed a Chart depicting the amount of late fee levied in respect of each assessee was well as reflecting the financial year to which the amount of levy u/s 234E pertains. For a ready reference, this chart is being reproduced herein under:- 8.2 A perusal of the above chart establishes beyond doubt that all the impugned levies are for a period prior to 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in dismissing the appeals of the assessees as being time-arred by taking the date of intimation u/s 200A of the Act as the basis for computing the limitation period for filing the appeal. The NFAC should have taken the date of intimation u/s 154 of the Act for the purpose of computing the limitation period. Admittedly, and, undisputedly, the appeals before the NFAC were within time if we take the date of intimation u/s 154 of the Act. Accordingly, in our considered view we find that NFAC was patently incorrect in out-rightly rejecting the assessees appeals by treating them as time barred by calculating the limitation period from the date of intimation u/s 200A of the Act, rather than by taking the date of intimation u/s 154 of the Act for the purpose of adjudication. 8.5 As far as the contention of the Department that there was no mistake apparent on the face of record which could be rectified u/s 154 of the Act by the AO, in our considered view, since the levy of late fee u/s 234E in the intimation u/s 200A was contrary to the settled law in numerous cases, the same was binding on the lower authorities as has been held by the Hon'ble Bombay High Court in the case of Bank o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... typographical error in the Form 35 where the assessee, instead of mentioning section 154, mentioned section 200A against the section and subsection of the Income-tax Act, 1961. We, therefore, find merit in the argument of the ld. Counsel that there is no delay in filing of the above appeals. 23. Further, the Hon ble Delhi High Court in the case of Remfry and Sons (supra) has held that procedural/technical mistakes could not stand in the way of imparting justice and the authority must allow opportunity to the assessee to rectify mistakes. Since, in the instant case, there was merely a technical mistake in wrong mentioning of the provision, therefore, we are of the considered opinion that this technical mistake should not stand in the way of imparting justice and, therefore, the order of the CIT(A) holding that there is delay in filing of these appeals is not correct. Accordingly, we hold that the assessee has filed the appeals well in time and there is no delay. The order of the CIT(A) on this issue is accordingly dismissed. 24. A perusal of the order of the CIT(A) shows that all these TDS statements were filed before 01.06.2015. Therefore, the question that has to be considered is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 154 of the Act rejecting rectification application moved by assessee against intimation issued levying late filing fees charged under section 234E of the Act. The case of assessee before us is that the issue is squarely covered by various orders of Tribunal, wherein the issue has been decided in respect of levy of late filing fees under section 234E of the Act, in the absence of empowerment by the Act upon Assessing Officer to levy such fees while issuing intimation under section 200A of the Act. The Tribunal vide order dated 21.09.2016 with lead order in ITA Nos.560/PN/2016 561/PN/2016, 1018/PN/2016 to 1023/PN/2016 in Maharashtra Cricket Association Vs. DCIT (CPC)-TDS, Ghaziabad, relating to assessment years 2013-14 and 2014-15 for the respective quarters deliberated upon the issue and held as under:- 34. Accordingly, we hold that the amendment to section 200A(1) of the Act is procedural in nature and in view thereof, the Assessing Officer while processing the TDS statements / returns in the present set of appeals for the period prior to 01.06.2015, was not empowered to charge fees under section 234E of the Act. Hence, the intimation issued by the Assessing Officer under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 required to be stated that, as per the well established principles of interpretation of statute, unless it is expressly provided or impliedly demonstrated, any provision of sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and charging late filing fees under section 234E of the Act for the period of tax deducted prior to 1st day of June, 2015. The same cannot be charged by issue of notices after 1st day of June, 2015 even where the returns were filed belatedly by the deductor after 1st June, 2015, where it clearly related to the period prior to 01.06.2015. 16. We hold that the issue raised in the present bunch of appeals is identical to the issue raised before the Tribunal in different bunches of appeals and since the amendment to section 200A of the Act was prospective in nature, the Assessing Officer while processing TDS returns / statements for the period prior to 01.06.2015 was not empowered to charge late filing fees under section 234E of the Act, even in cases where such TDS returns were filed belatedly after June, 2015 and even in cases where the Assessing Officer processed the said TDS returns after June, 2015. Accordingly, we hold that intimation issued by Assessing Officer under section 200A of the Act in all the appeals does not stand and the demand raised by charging late filing fees under section 234E of the Act is not valid and the same is deleted. xxx 28. In the result, all the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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