2020 (10) TMI 1023

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.... the intimation u/s. 200A of the Act. 2. The Ld. Counsel for the Assessees at the outset submits that the Centralized Processing Cell issued intimation u/s 200A of the Act on Form No.26Q filed by the Assessees for the 4th quarter of the financial year 2015-16 and while processing Form No.26Q, in the intimation u/s 200A, late fee u/s 234E was levied for the delay in filing Form No.26Q. The Ld. Counsel submits that whether late fee u/s 234E can be levied prior to amendment to section 200A(1)(c) of the Act by Finance Act, 2015 w.e.f. 1.06.2015 while processing the TDS returns is now decided by the Coordinate Bench of the Pune Bench, wherein, it was held that prior to 1.06.2015, Assessing Officer was not empowered to charge late fee u/s.234E....

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....lso made for charging of interest. However, since the provisions of section 234E of the Act were not on statute when the Finance (No.2) Act, 2009 was passed, no provision was made for determining the fees payable under section 234E of the Act at the time of processing the TDS statements. So, when section 234E of the Act was introduced, it provided that the person was responsible for furnishing the TDS returns i statements within stipulated period and in default, fees would be charged on such person. The said section itself provided that fees shall not exceed the amount of tax deducted at source or collected at source. It was further provided that the person responsible for furnishing the statements shall pay the said amount while furnishing....

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....oposition that fees under section 234E of the Act is chargeable in the case of present set of appeals. where the Assessing Officer had issued the intimation under section 200A of the Act prior to 01.06.2015. 30. Another aspect of the issue is whether the amendment brought in by the Finance Act, 2015 w.e.f. 01 .06.2015 by way of insertion of clause (C) to section 200A(1) of the Act is clarificatory or is prospective in nature and is not applicable to the pending assessments. Undoubtedly, the provisions of section 234E of the Act were inserted by the Finance Act, 2012, under which the liability was imposed upon the deductor in such cases where TDS statements I returns were filed belatedly to pay the fees as per said section. However,....

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....ertion of section 200A in the Act, the existing provisions of section 200A of the Act did not provide for determination of fees payable under section 234E of the Act at the time of processing of TDS statements. in this regard. it was thus, proposed to amend the provisions of section 200A of the Act so as to enable the computation of fees payable under section 234E of the Act at the time of processing of TDS statements under section 200A of the Act. In other words, the Assessing Officer is empowered to charge fees payable under section 234E of the Act in the intimation issued after insertion of clause (c) to section 200A(1) of the Act w.e.f. 01.06.2015. The Legislature itself recognized that under the existing provisions of section 200A of t....

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.... applicable w.e.f. 01.06.2015 and has held that it has prospective effect. Accordingly, the Hon'ble High Court held that intimation raising demand prior to 01.06.2015 under section 200A of the Act levying section 234E of the Act late fees is not valid". However, the Hon'ble High Court kept open the issue on constitutional validity of section 234E of the Act. We have already referred to the decision of Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) in this regard, wherein the constitutional validity of section 234E of the Act has been upheld. 33. 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 proce....

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....d. In this view of the matter, we hold that the AO is not empowered to charge fees under section 234E of the Act by way of intimations issued under section 200A of the Act in respect of defaults before 01.06.2015 and consequently allow the ground of all appeals raised by the assessees." 5. Similar view has been taken by the Tribunal in the cases of M/s. P.L. Oswal & Co., & Shri Tirathraj J Singh in ITA.No. 4714 & 4715/MUM/2016 by order dated 17.05.2017, Anil J. Gorasia v. ITO in ITA.Nos. 3320, 3321 & 3322/MUM/2015 by order dated 30.06.2017 and in the case of National Laminate Corporation v. ITO in ITA.No. 4902/Mum/2018 dated 10.12.2019. 6. Therefore, respectfully following the said orders, we direct the Assessing Officer to delete the....