TaxTMI 
TaxTMI 
2019 (6) TMI 1575
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng opportunity to the assessee. The A.O. passed rectification order u/s 154/200A of Income Tax without giving opportunity to the assessee. ITA No.2039/Del/2018 3. That the appellant humbly prays that Rs. 40,600/- which was charged by the Ld. Assessing officer for late filing fee u/s 234E of Income Tax Act, 1961 upheld by the Ld. Commissioner of Income Tax (Appeals) may kindly be directed to be deleted. 4. That the appellant craves for permission to add any other ground of appeal before it is heard and disposed of. 2. Briefly stated facts of the case are that the assessee company filed returns of TDS in form No. 26QB for the 3rd quarter of 2014 on 27/12/2014, whereas the due date of filing of the said return was on 07/06/2014 and, thus, there was delay of 203 days. According to learned CIT(A), a rectification order under section 200A of the Income Tax Act, 1961 (in short 'the Act') was passed by the Central Processing Center (CPC), which was intimated to the assessee on 10th March, 2016 by email, wherein Rs. 40,600/- was levied as late filing fee under section 234E of the Act. Before the Ld. CIT(A), the assessee contended that fee has levied und....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rought in the Finance Act, 2015, w.e.f., 01/06/2015, ITA No.2039/Del/2018 which paved the way for levying the fee under section 234E of the Act in the statement processed under section 200A of the Act. The learned CIT(A) following the decision of Hon'ble Gujarat High Court in the case of Rajesh Kaurani (supra) where it is held that even prior to 01.06.2015, it was always open for the Revenue to calculate fee in terms of section 234E of the Act. In the case of Fatehraj Singhvi (supra) decided by the Hon'ble Karnataka High Court, it is held that no late fee could be levied under section 234E of the Act in the returns processed prior to 01.06.2015. Thus, the Hon'ble court in the case of Fatehraj Singhvi (Supra), has restricted levy of late fee in returns processed prior to 01.06.2015 and not return filed prior to 01.06.2015. Section 200A, which has been amended w.e.f. 01.06.2015 also says about processing of returns. The relevant part of Section 200A(i) is reproduced as under: "Processing of statements of tax deducted at source. 200A. (1) Where a statement of tax deduction at source or a correction statement has been made by a person deducting any sum (hereafter r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion w.e.f. 01.06.2015. Before 01.06.2015, there was no enabling provision in the Act u/s 200A for raising demand in respect of levy of fee u/ s 234E. As such, as per ITA No.2039/Del/2018 the assessee, in respect of TDS statement filed for a period prior to 01.06.2015, no late fee could be levied in the intimation issued u/s 200A of the Act. 3. Heard. The Id. CIT(A), while deciding the matter against the assessee, has placed reliance on 'Rajesh Kaurani vs. UOT, 83 Taxmann.com 137 (Guj), wherein, it has been held that section 200A of the Act is a machinery provision providing the mechanism for processing a statement of deduction of tax at source and for making adjustments. The Id. CIT(A) has held that this decision was delivered after considering numerous IT AT/ High Court decisions and so, this decision in Rajesh Kaurani (supra) holds the field. 4. We do not find the view taken by the Id. CIT(A) to be correct in law. As against Rajesh Kaurani' (supra), 'Shri Fatehraj Singhvi and Others vs.UOT, 73 Taxmann.com 252 (Ker), as also admitted by the Id. CIT(A) himself, decides the issue in favour of the assessee. The only objection of the Id. CIT(A) is that this decision....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../2016) has taken a view favourable to the assessee observing as under: "6. Now the assessee is in appeal before us. In ITA No. 438/JP/2016, the only effective ground is against confirmation of late filing fee of Rs. 48,402/'; charged by the A.O. U/s 234E of the Act. In this regard, the Ld. AR of the assessee has reiterated the arguments as made in the written submissions and has further submitted that the issue is no more res-integra. He placed reliance on the decision of the ITAT, Ahmadabad decision in the case of Perfect Cropscience Pvt. Ltd. Vs DCIT in ITA No. 2957 to 2963/Ahd/2015 and the decision of the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi & ors. Vs Union of India & Drs. (2016) 289 CTR (Kar) 602. 7. On the contrary, the Id DR has opposed the submissions and supported the orders of the authorities below. She relied on the decision of the Hon'ble Jurisdictional High Court rendered in the case of Dundlod Shikshan Sansthan Vs. Union of India (2015) 63 taxmann.com 243 (Raj.). 8. We have heard the rival contentions of both the parties, perused the material available on the record and also gone through the orders of the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cise of power U/s 200A for the period of the respective assessment years prior to 1st June, 2015. When the intimation of the demand notices U/s 200A is held to be without authority of law so far as it relates to computation and demand of fee U/s 234E, the question of further scrutiny for testing the constitutional validity of Section 234E would be rendered as an academic exercise. We find that the Hon'ble Jurisdictional High Court in the case of Dundlod Shikshan Geeta Star Hotels & Resorts Pvt. Ltd. Vs. DCIT Sansthan Vs. Union of India (supra) has also considered the decision of the Hon'ble Bombay High Court in the case of Rashmikant Kundalia Vs. Union of India (2015) 229 Taxman 596 wherein the Hon'ble High Court has decided the nature of demand. The Hon'ble High Court has held that Section 234E of the Act is not punitive in nature but a fee which is a fixed charge for the extra service which the department has to prove due to the late filing of the TDS statements. Hence from both the decisions relied upon by the Id. DR, the issue of power of imposing late fee is not decided but the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi & ors. Vs. Union of....