TaxTMI 
TaxTMI 
2018 (6) TMI 352
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.... passed u/s 154 of the Income Tax Act,1961(in short the "Act"). 2. At the outset it may be pointed out that the above appeals were delayed for filing by 17 days. An application requesting condonation of delay was filed alongwith an affidavit of Shri Dinesh Kumar Sharma, D.M. of the assessee, stating on oath that the delay was caused for the reason that the appeals pertained to a Government company i.e. Forest DM Himachal Pradesh State Forest Corporation and there was no legal help available in the forest division, since all legal matters were controlled by the head office of the company i.e. Himachal Pradesh State Forest Corporation Ltd., Shimla, where all the accounting and legal staff was available. It was stated that the delay was totally unintentional and beyond the control of the assessee. The Ld. counsel for assessee reiterated the contentions made in the affidavit and pleaded that the delay be condoned considering the above facts and the short duration of the delay i.e. of only 17 days. The Ld. DR did not object to the same. 3. In view of the same, we condone the delay in all the appeals considering that the assessee had reasonable cause for the delay in filing the appeals....
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....st be dealing with Ground No.4 raised by the assessee, which challenges the order of the CIT(A) in upholding the action of the Assessing Officer in charging the fees u/s 234E of the Act in an order passed u/s 154 of the Act. 9. Ld.counsel for the assessee contended that the AO had no power initially to charge fees u/s 234E of the Act, since the original processing of TDS return and the consequent intimation u/s 200A was made prior to 01-06- 2015 ,when there was no enabling provision u/s 200A for charging the same. Ld.Counsel for the assessee therefore contended that the fees could not in any case have been levied by way of rectification made u/s 154 of the Act. Ld.Counsel alternately contended that, the issue of charging of fees u/s 234E prior to 01.06.2015, was debatable with two contradictory decisions of the High Courts, the Hon'ble Gujarat High Court ruling against the assessee in the case of Rajesh Kourani vs Union Of India (2017) 83 taxmann.com 137(Guj), while the Hon'ble Karnataka High Court ruling in favour of the assessee in the case of Fatehraj Singhvi & Ors vs Union Of India & Ors (2016) 289 CTR (Kar) 602.Therefore also, Ld.Counsel for the assessee contended that th....
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....he Act even prior to 1.6.2015, while the Hon'ble Karnataka High Court stating otherwise. Clearly, the issue was a debatable issue and therefore does not qualify as a glaring and obvious mistake apparent from record. The fees, therefore, in any case could not have been charged by rectifying the intimation made u/s 200A of the Act. 14. Further, we note that the Chandigarh Bench of the ITAT in a recent decision in the case of M/s Sonalac Paints & Coatings Ltd. and Nagpal Trading Company in ITA Nos.1158 & 963/Chd/2017 dated 1.5.2018 has held that prior to 01-06-15 no fees u/s 234E was chargeable in the intimation made u/s 200A of the Act. The I.T.A.T. in the said decision has considered the contrary decisions of Hon'ble Gujarat High Court in the case of Rajesh Kourani (supra) and Hon'ble Karnataka High Court in the case of Fatheraj Singhvi & Ors. (supra) and applying the ratio in the case of Vegetable Products (supra) that in such circumstances the decision favouring the assessee is to be followed, decided the issue in favour of the assessee following the decision of the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi & Ors. (supra). The relevant findings ....
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....In both these cases, the constitutional validity of Section 234E was challenged before the Hon'ble High Courts and one of the pleas taken by the counsels of the assessees against the introduction of the said Section in the Statute was that there was no provision for filing appeals against the orders passed levying fees u/s 234E. It was in this context that the Hon'ble High Court held that even if no appeal lay against levy of fees u/s 234E, the remedy of writ still remained with the aggrieved parties and therefore, the constitutional validity of the said Section could not be challenged on this ground. It may be noted that the observation of the Hon'ble High Courts was in the context of no appeal lying against the levy of fees u/s 234E per-se, but where fees are levied by way of adjustment made in intimations u/s 200A, the said intimations are appealable as per the Statute before the CIT(A). In such cases, the levy of fees is challenged by way of filing appeals against the intimations passed against Section 200A and this is the distinguishing fact between the observations made by the Hon'ble Courts where they observed that no appeal lay against levy of fees u/s 234E.....