TaxTMI 
TaxTMI 
2019 (1) TMI 1059
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.... 2013-14 Quarter ended 31.03.2013 4. 1485/Bang/2018 2014-15 Quarter ended 30.06.2013 5. 1486/Bang/2018 2014-15 Quarter ended 30.09.2013 6. 1487/Bang/2018 2014-15 Quarter ended 31.12.2013 7. 1488/Bang/2018 2014-15 Quarter ended 31.03.2014 8. 1489/Bang/2018 2015-16 Quarter ended 30.06.2014 9. 1490/Bang/2018 2015-16 Quarter ended 30.09.2014 3.1 These nine appeals by the assessee, directed against the respective orders of the CIT(A), all dated 14.02.2018, relating to different assessment years, were all heard together as they related to common/connected issues and are being disposed off by way of this consolidated order. The grounds / issues raised in all these appeals are similar and therefore we extract hereunder only the statement of facts and grounds of appeal raised in ITA No.1482/Bang/2018 for Assessment Year 2013-14: STATEMENT OF FACTS 1. The Appellant is a Co-operative Society primarily formed with a view to provide credit facilities to its members. It accepts deposits from members and others. The Appellant is registered with Co-operative Department of Government of Karnataka as Co-opera....
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.... of late fees is incorrect and wrong and not in accordance with law as section 200A does not permit levy of late fee u/s 234E. GROUNDS OF APPEAL 1. The Learned CIT(appeals)-10, Bengaluru has not considered the correct legal position which emanate from the various judgements. 2. The Honourable Karnataka High Court in the case of Fatheraj Singhvi v/s U01 (2650/2015, WA 34/2016,WA 2648/2015, WA 2652/2015) has held that there was no power under section 200A to levy any late fee u/s 234E prior to amendment of the law on 1-6-2015. Therefore, the demand of late fee would be automatically cancelled as the law prevailing at that time u/s 200A did not allow such levy while processing the TDS returns. 3. The Learned CIT(Appeals) has erred in not granting relief and wrongly concluded that refund of late fee paid u/s 234E is not permissible whereas the appeal was against the levy of late fee and not claiming refund of late fee. The Learned CIT (Appeals) was also informed that appeal was preferred lately as similar matter was already being contested by other parties in various judicial forums and the appellant was waiting for the outcome of the same. The appeal was ....
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.... f Section 200A(1)(c) of the Act vide Finance Act, 2015, w.e.f. 01.06.2015 was under challenge in the Courts. The Hon'ble Karnataka High Court, in the case of Fatheraj Singhvi and Others Vs. UOI, WA 2263 to 2274/2015 and others dated 26.08.2016, had quashed the intimation under section 200A of the Act by holding that there was no power under section 200A of the Act to levy any late fee under section 234E of the Act prior to the amendment to the section w.e.f. 01.06.2015. 4.3 The assessee submitted that it is in view of the above decision of the Hon'ble Jurisdictional High Court in the case of Fatheraj Singhvi (supra), the assessee filed belated appeals before the CIT(A) against the intimations issued under section 200A of the Act for the periods prior to 01.06.2015. The CIT(A), vide the respective impugned orders, passed separately for each of the nine appeals, declined to admit the assessee's appeals stating that the reasons furnished by the assessee for not filing the appeals in time does not constitute "sufficient cause". The CIT(A) also noted the following observations of the Hon'ble Karnataka High Court at paras 22 and 27 of the decision in the case of Fatheraj Singhvi: ....
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....l not permit the deductor to re-open the said question unless he has made payment under protest."(para 22) And the observation in para 27 that: "27...................It is clarified that the present judgment would not be interpreted to mean that even if the payment of the fees under section 234E already made as per demand / intimation under section 200A of the Act for TDS for the period prior to 01.04.2015 is permitted to be re-opened for claiming refund........." 5.3.1 In this regard, it was submitted that the assessee has not paid the demand raised by the Revenue by way of intimations under section 200A of the Act and therefore the question of re-opening the issue for claiming of refunds does not arise in the case of the assessee. Therefore, the observations of the Hon'ble High Court does not apply to facts of the assessee's case as has been misinterpreted by the CIT(A). 5.1.4 The learned AR contends it is settled that when a Higher Court has rendered a decision on issue, such a decision gives the assessee 'sufficient cause' to approach the appellate authorities for remedy in respect of that issue. It was submitted that only after the Hon'ble Karnataka Hig....
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....s as per the requirements of the TDS provisions in the Act and accordingly intimations under section 200A of the Act were issued for the respective quarters for which the delay occurred. The assessee filed appeals before the CIT(A) against the intimations for each of the quarters; after delays varying for each of the quarters. The reason put forth for the delay in filing the appeals was that the issue in question was under challenge in the Courts and the assessee decided to wait for the outcome of the judicial proceedings. The assessee also did not pay the levied fees under section 234E of the Act that was raised in the intimations under section 200A of the Act. Now that the decision of the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi and Others Vs. Union of India WA 2263, 2674/2015 dated 26.08.2016 has been rendered quashing the issue of intimation under section 200A levying late fee under section 234E of the Act, prior to 01.06.2015; the assessee moved the AO to cancel the intimations issued under section 200A and as the AO asked the assessee to file appeals to get the intimations quashed, the appeals were filed before the CIT(A). 5.3.2 The substantive issue....
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....active. 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 (I) 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 statute is to be read as having prospective effect and not retrospective effect. Linder the circumstances, we find that substitution made by clause (c) to (I) of sub-section (1) of Section 200A can be read as having prospective effect and not ha....
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....on and demand of fee under Section 234E, we find 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 of the Act. At this stage, ve 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 rr.ay 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 discussion would be required for examining the constitutional validity of Section 234E of the Act. Save and except to observe that the question of constitut....
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....of Collector, Land Acquisition Vs. MST Katiji and Others (1987) 167 ITR 471 (SC), while laying down the principles for considering matters of condonation of delay in filing appeals, has stated that substantial justice should prevail over technical considerations. Considering the aforesaid principles laid down by the Hon'ble Apex Court, the facts and peculiar circumstances of the case on hand, we are of the considered opinion that this is a fit case for condoning the delay in filing the nine appeals before the CIT(A). 6.2 In this regard, we have perused the judicial pronouncements cited by the learned DR for Revenue and are of the view that they are distinguishable on facts and are not directly applicable to the assessee's case. 6.2.1 In the case of Somerset Place Co-operative Housing Society Ltd., Vs. ITO (supra), the assessee decided not to file appeal against the order of the Tribunal on the issue of mutuality and it succeeded on the same issue in later years in its own case. Having accepted the stand of Revenue in the earlier years, the assessee filed belated appeals after a favourable decision was received in the later year, thereby seeking to re-open an appeal which had ....