TaxTMI 
TaxTMI 
2020 (9) TMI 146
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....is 7th March, 2019. Although the ld.CIT(A) has duly taken note of the fact that the appeal has been filed against the order dated 6th February, 2019 as per para 4.2 of his order, but, treated the same as belated on the ground that original order u/s 200A was passed on 27th July, 2019. Thus, the ld.CIT(A) has gone on wrong appreciation of facts and, thereby, dismissed the appeal on account of delay which is not correct. Referring to Form No.35 along with the order passed u/s 54, he submitted that the appeal was filed before the CIT(A) against the order passed u/s 154. However, due to a clerical typographical error, it was inadvertently mentioned as 200A. Therefore, this confusion arose. 3. Referring to the decision of the Hon'ble Delhi High Court in the case of Remfry and Sons vs. CIT, 276 ITR 1, he submitted that the Hon'ble High Court has held that the procedural/technical mistakes should not stand in the way of imparting justice and the authority must allow opportunity to the assessee to rectify mistakes. He submitted that since, on the issue of delay the ld.CIT(A) has neither confronted the same to the assessee nor has appreciated the facts properly, therefore, the dismissal ....
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....Memorandum to Finance Bill, 2012, Memorandum to Finance Bill'2015 alongwith host of case-laws decided in favour of Revenue. She submitted that the premise /foundation of the decision of Hon'ble Karnataka High Court has also been analysed and is distinguishable in view of the case-laws referred to. Accordingly she urged that the above decision dated. 29.11.2019 should not be followed in the name of rule of consistency in the case of above mentioned appeals as also res- judicata is not applicable in income-tax proceedings. 7. As regards 'Rule of consistency' is concerned, she placed reliance on the decision of jurisdictional High Court in the case of Krishak Bharati Cooperative Ltd vs DC1T [2012] 23 taxmann.com 265 (Delhi) wherein Hon'ble Delhi HC considered the decision of Hon'ble Supreme Court in the case of Radhasoami Satsang vs CIT (1992] 60 taxman 248(SC) and has held that the rule of consistency should not create anomaly. She also relied on the following decisions:- (i) Rohitasava Chand [2008] 306 ITR 242 (Delhi) (ii) Anup Sharma vs Addl CIT, ITA No.l61/CHD/2012, order clt.26.08.2014 of ITAT, Chandigarh (iii) Meeraj Estate & Developers vs DCIT [201....
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....n.com 137 (Gujarat) (ii) Biswajit Das vs. UOI, [2019] 103 taxmann.com 290 (Delhi)] (iii) Qatalys Software Technologies (P) Ltd. vs. UOI, [2020] 115 taxmann.com 345 (Madras) ] (iv) Dunlod Shikshan Sansthan vs. UOI [2015] 63 taxmann.com 243 (Raj)] (v) Rashmikant Kundalia vs. UOI [2015] 54 taxmann.com 200 (Bombay) (vi) Lakshminirman Bangalore Pvt. Ltd. vs. DCIT [2015] 60 taxmann.com 144 (Karnataka) (vii) Sree Narayana Guru Smaraka Sangam Upper Primary School vs. UOI [2017] 77 taxmaim.com 244 (Kerala) (viii) Dr. Amrit Lai Mangal vs. UOI [2015] 62 taxmami.com 310 ( P& H) 12. The ld. DR submitted that a harmonious and conjoint reading of provisions of section 234E & Memorandum to Finance Bill, 2012, Section 271H, section 200 A(l)(c), Memorandum to Finance Bill 2015 and the case-laws on this issue makes following points unambiguously clear that: a) The fee payable u/s 234E is a charging provision and the AO has no discretion at all whereas section 200A is a machinery provision enabling for processing of TDS statements, computation of adjustments, fees and generation of intimation etc. Hon'ble ITAT has not appreciat....
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....of clause 200A(l)(c ) (i.e. giving effect to computation of fees u/s 234E of the Act) should include computation of fees under section 234E. This also needs consideration by Hon'ble ITAT. d). Section 200A speaks about the processing of TDS return/statements and thus the provisions starts only after the filing of such TDS returns/statements, whether in time or delayed, whereas section 234E seeks to levy the fees for the period of delay in filing such TDS returns and statements. Therefore, it may be seen that the charging provisions of section 234E precedes the operation of the machinery provisions of section 200A. Hon'ble ITAT has not appreciated this obvious difference in its order dt. 29.11.2019, referred supra. e). The fee payable u/s 243E is compensatory in nature to the department for the services provided for regularization of the delay in filing of a TDS return/statement & is not penal in nature since the Income Tax Department has to expend extra effort & resources for processing delayed TDS returns or statements and also the additional burden of interest to be paid on refunds payable to the assessee on whose account tax deduction has been made. [ A....
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....2 .Therefore, since both the substantive legislation (section imposing statutory liability as well as the charging section for levy of fees in case of violation of statutory liability) were in effect much earlier from the date of insertion of 200A(3) which is merely a mechanical provision providing for computation, such amendment in procedural section should be considered as clarificatory in nature. The same have not been considered by Hon'ble ITAT. 14. She submitted that in the case of Rajesh Kourani, Hon'ble Gujarat High Court has considered the chargeability of fee u/s 234E before 01.06.2015 when clause (c) was inserted to section 200A(1) by the Finance Act, 2015. Hon'ble High Court also considered the decision of Hon'ble Karnataka High Court in the case of Fatehraj Singhvi & Others. The issue has been discussed in great detail in para 16 to 21 and Hon'ble High Court has upheld the levy of fee u/s 234E since the day the provisions of section 234E was brought to statute and even prior to 01.06.2015 when section 200A(1) was amended to include clause (c). Hon'ble High Court has held that section 200A of the Act is a machinery provision providing mechanism for processing a statem....
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.... be noted that Hon'ble Karnataka High Court set-aside the order levying the fee u/s 234E holding that the amendments in sec 200A, wherein the clause (c) was inserted, can't have any retrospective application. However, two important points can be noted in the order. First Hon'ble Court didn't gave any such findings which can be said to have negated the mandatory charging of fees u/s 234E for late filing of TDS/TCS returns / statements which creates an automatic charge on the deductors who have defaulted on this count & who are required to voluntarily pay the fee u/s 234E before delivering such belated TDS/TCS returns /statements in accordance with sub-section (3) of sec. 234E. Second, Hon'ble Karnataka High Court left the question of constitutional validity of sec.234E open for consideration by the Division Bench [Para-26 of the order] which was earlier decided by Single Member Bench of the High Court upholding the validity of sec. 234E in the case of Lakshminirman Bangalore Pvt. Ltd. vs. DCIT [cited supra]. It is reiterated at the cost of repetition that the issue of constitutional validity of sec. 234E has been upheld by various High Courts including the jurisdictional High Court ....
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....e allowed. 21. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find, the assessee, in the instant case has basically challenged the levy of late fee u/s 234E by the AO which has been upheld by the CIT(A) and who has also dismissed these appeals on account of delay in filing. 22. So far as the delay in filing of the appeals before the CIT(A) is concerned, a perusal of the Form No.35 filed along with copy of order passed u/s 154 by the CPC shows that the date of order u/s 200A was 27th July, 2013 and the assessee filed the rectification application before the CPC and the order u/s 154 was passed on 6th February, 2019. The assessee has filed the appeal against the order passed u/s 154 on 26th February, 2019 which is well within the time. Even the ld.CIT(A) at para 4.2 of his order has also mentioned that the assessee has filed the appeal against the correction dated 6th February, 2019. However, the ld.CIT(A), without considering the facts properly, has held that there is inordinate delay in filing of the ....
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....these appeals is the charging of late filing fee u/s 234E of the Act while issuing the intimation u/s 200A of the Act. The case of the assessee before us is that where the legislature has inserted clause (c) to section 200A(1) of the Act w.e.f 01.06.2015, then in respect of the TDS statements which were filed under the respective sections of the Act, for the period prior to 01.06.2015, no late filing fee could be charged u/s 234E of the Act, in the intimation issued u/s 200A of the Act. We find that the said issue has been adjudicated by the Hon'ble Karnataka High Court in Fatehraj Singhvi & Others vs Union of India (supra), which proposition has been applied by the Pune Bench of the Tribunal in Medical Superintendent Rural Hospital, DOBI BK vs DCIT (supra). The Tribunal had also taken note of the decision of Hon'ble Gujarat High Court in Rajesh Kourani vs Union of India (supra) and applying the proposition that where there was difference of opinion between Hon'ble High Courts on a particular issue and in the absence of any decision rendered by the Jurisdictional High Court, then the decision in favour of the assessee needs to be followed as held by Hon'ble Supreme Court in Vegetab....
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....ra) and Medical Superintendant Rural Hospital Vs. ACIT (CPC)-TDS in ITA Nos.2072 & 2073/PUN/2017, order dated 21.12.2017, which has been relied upon by the learned Authorized Representative for the assessee. 13. The Hon'ble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra) had also laid down similar proposition that the amendment to section 200A of the Act w.e.f. 01.06.2015 has prospective effect and is not applicable for the period of respective assessment years prior to 01.06.2015. The relevant findings of the Hon'ble High Court are in paras 21 and 22, which read as under:- "21. However, if Section 234E providing for fee was brought on the state book, keeping in view the aforesaid purpose and the intention then, the other mechanism provided for computation of fee and failure for payment of fee under Section 200A which has been brought about with effect from 1.6.2015 cannot be said as only by way of a regulatory mode or a regulatory mechanism but it can rather be termed as conferring substantive power upon the authority. It is true that, a regulatory mechanism by insertion of any provision made in the statute book, may have a retr....
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....d under Section 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest." 14. The Hon'ble High Court thus held that where the impugned notices given by Revenue Department under section 200A of the Act were for the period prior to 01.06.2015, then same were illegal and invalid. Vide para 27, it was further held that the impugned notices under section 200A of the Act were for computation and intimation for payment of fees under section 234E of the Act as they relate for the period of tax deducted at source prior to 01.06.2015 were being set aside. 15. In other words, the Hon'ble High Court of Karnataka explained the position of charging of late filing fees under section 234E of the Act and the mechanism provided for computation of fees and failure for payment of fees under section 200A of the Act which was brought on Statute w.e.f. 01.06.2015. The said amendment was held to be prospective in nature and hence, notices issued under section 200A of the Act for computation and intimation for payment of late filing fees under section 234E of the Act relating to the period of tax deduction prior to 01.06.2....
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....failed to take into consideration the settled law that where there is difference of opinion between different High Courts on an issue, then the one in favour of assessee needs to be followed as held by the Hon'ble Supreme Court in CIT Vs. M/s. Vegetable Products Ltd. (supra), in the absence of any decision rendered by the jurisdictional High Court. The Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (2015) 54 taxmann.com 200 (Bom) had decided the constitutional validity of provisions of section 234E of the Act and had held them to be ultra vires but had not decided the second issue of amendment brought to section 200A of the Act w.e.f. 01.06.2015. In view thereof, respectfully following the ratio laid down by the Hon'ble High Court of Karnataka and Pune Bench of Tribunal in series of cases, we delete the late filing fees charged under section 234E of the Act for the TDS returns for the period prior to 01.06.2015. 18. Further before parting, we may also refer to the order of CIT(A) in the case of Junagade Healthcare Pvt. Ltd., where the CIT(A) had dismissed appeals of assessee being delayed for period of December, 2013 and July, 2014. The CIT(A) whil....
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....re allowed." 10. The Delhi Bench of Tribunal in Meghna Gupta vs ACIT (supra) has also laid down similar proposition and held as under:- 6. "We have heard the rival submissions and also perused the relevant finding given in the impugned orders as well as material referred to before us. At the outset, from the perusal of the rectification order u/s 200A generated by TDS (CPC), it is noticed that the TDS in 26QB mentions date of filing of 'challan cum statement' as 5.4.2014, wherein late filing of 'challan cum statement' u/s 234E has been levied. The assessee had purchased the property on 6.12.2013 i.e., relevant to the assessment year 2014-15. Since assessee had purchased the property from eight sellers and the payment to each of the seller has been made separately for an amount of Rs. 41,87,500/- aggregating to Rs. 3,35,00,000/-, the assessee' contention has been that it was not required to deduct TDS, because the payments made to each seller was less than the prescribed limit of Rs. 50 lacs and therefore, provision of section 194IA was not applicable. The demand has been raised by the department u/s 200 in terms of failure to comply with Sectio....
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....n of India reported in (2016) 289 CTR 0602, wherein the lordship had made following observations :- "14. We may now deal with the contentions raised by the learned counsel for the appellants. The first contention for assailing the legality and validity of the intimation under Section 200A was that, the provision of Section 200A(1)(c), (d) and (f) have come into force only with effect from 1.6.2015 and hence, there was no authority or competence or jurisdiction on the part of the concerned Officer or the Department to compute and determine the fee under Section 234E in respect of the assessment year of the earlier period and the return filed for the said respective assessment years namely all assessment years and the returns prior to 1.6.2015. It was submitted that, when no express authority was conferred by the statute under Section 200A prior to 1.6.2015 for computation of any fee under Section 234E nor the determination thereof, the demand or the intimation for the previous period or previous year prior to 1.6.2015 could not have been made." 7. Thus, we hold that no fee was leviable to the assessee u/s 234E in violation of section 200(3), because assessee had fu....
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....trict Health & Welfare Society vs. ITO, ITA No.7473/Del/2018, order dated 26.04.2019. 27. So far as the various decisions relied on by Ld. DR are concerned, we have carefully gone through all those decisions and are of the opinion that these can be divided broadly into three categories i.e. a) Provisions of section 234 E are constitutionally valid b) Rule of consistency is not applicable and c) Late of fee u/s. 234 E is leviable for defaults of period in filing the TDS/ TCS statements/ returns even for the period prior to 01-06-2015 27.1 So far as the argument of the Ld. DR on the basis of various decisions including the decision of Hon'ble Delhi High Court in the case of Biswajit Das (supra) that provisions of section 234E are constitutionally valid is concerned, no doubt the provisions of section 234 E have been held to be constitutionally valid which is not the dispute before us. So far as the argument of Ld. DR on rule of consistency is concerned, the same in our opinion is not absolute but in the present case we are faced with a situation which has been considered by our coordinate benches and there is no subsequent development to depart there ....
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....019 06.02.2019 27-Feb-19 22,000.00 6,600.00 28,500.00 15.10.2012 02.02.2013 03 240 7932/DEL/2019 04.03.2019 06-Mar-19 4,400.00 1,364.00 5,760.00 15.01.2013 06.02.2013 Q3 260 7935/DEL/2019 06.02.2019 27-Feb-19 4,400.00 1,320.00 5,720.00 15.01.2013 06.02.2013 Q4 240 7933/DEL/2019 05.02.2019 27-Feb-19 60,200.00 16,254.00 76,450.00 15.05.2013 12.03.2014 26Q Q4 27Q 7936/DEL/2019 05.02.2019 7937/DEL/2019 00.02.2019 27-Feb-19 27-reb-19 Total 60,200.00 35,518.00 33,970.00 102,964.00 227,170.00 170,020.00 95,720.00 15.05.2013 12.03.2014 156,940.00 15.05.2013 12.03.2014 197,790.00 date of Date of Filling Yaar Quarter Form No. ITAT Appeal No rectification appeal before order 2013-14 Q1 24Q 7938/DEL/2019 06.02.2019 2013-14 Q1 260 7942/DEL/2019 04.03.2019 CITA 22-Feb-19 06-Mar-19 2013-14 02 24Q 7939/DEL/2019 06.02.2019 Levy Late Filling 130,400.00 31,963.00 25-Feb-19 112,000.00 Interest Amount Due Date of Filling TDS Statement Date OF Filling TDS ....