TaxTMI 
TaxTMI 
2022 (4) TMI 1313
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....Form 26QB-cumchallan before due date on 24-11-2014, but inadvertently committed an error therein of depositing this TDS using PAN of the seller instead of PAN of the appellant (as the buyer) 1.2 The CIT(A) has omitted to consider cogent submissions on facts and merits of the case and dismissed the appeal solely on law issue 1.3 CPC imposed "Late filing levy" for delay of 373 days in filing amended Form No.26QB filed on 16-12-2015 without linking or considering date of first Form 26QB filed before due date on 24-11- 2014 1.4 It is submitted that default committed is a technical one and there is no loss of revenue at any stage, since the appellant had deposited TDS of Rs. 2,23,775 first on 24-11-2014 i.e. before date of sale and again redeposited the same amount of TDS (together with interest of Rs. 46,977) on 16-12-2015 with PAN of the appellant as a buyer for filing amended Form No. 26QB. It is submitted that there is no default u/s 234E if filing of date of original Form 26QB is treated as a cause of action for reckoning default thereunder 1.5 It is submitted that "Late Filing Levy" of Rs. 74,600 is imposed u/s 200A without specifying section wh....
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....tion 3 of Section 200 of the income Tax Act, 1961 (hereafter referred to as " the Act") require any person deducting tax at source to prepare the prescribed statement and deliver or cause to be delivered the same to the prescribed Authority within the given time, the forms for such statements are prescribed in Rule 31A of the income Tax Rules, 1962. Section 200 A of the Act enumerates the manner of processing of such statements and section 234E of the Act inserted by Finance Act,2012 w.e.f. 1.6.2012 provides for levy of fees for default in furnishing the statements under sub section 3 of section 200 of the Act. In section 200A which deals with processing of the Statements prescribed the specific provision for levy of fee under section 234E was inserted w. e. f. 1.6. 2015. The main grievance of the appellant is that though section 234E came into effect w.e.f. 1.6. 2012 but since the enabling provision for computation of fee while processing the statements was inserted in Section 200A w.e.f. 1.6.2015 only the charging section i.e. section 234 E cannot be enforced prior to 1.6.2015. 6.1 Recently, the Hon'ble High Court of Gujarat in the case of Rajesh Kourani vs. Union Of....
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....ision, as noted, it was always open for the Revenue to charge the fee in terms of section 234E of the Act. ....... 27. counsel for the petitioner however, referred to the decision of Supreme Court in case of CIT v. B. C. Srinivasa Setty [1981] 128 ITR 294/5 Taxman 1 (SC), to contended that when a machinery provision is not provided, the levy itself would fail. The decision of Supreme Court in case of B C Srinivasa Setty (supra) was rendered in entirely different background. Issue involved was of charging capital gain on transfer of capital asset. In case on hand, the asset was in the nature of goodwill. The Supreme Court referring to various provision concerning charging and computing capital gain observed that none of the these provisions suggest that they include an asset in the acquisition of which no cost can be conceived. In such a case, the asset is sold and the consideration is brought to tax, what is charged is a capital value of the asset and not any profit or gain. This decision therefore would not apply in the present case. " 6.2 As the issue in ground of appeal and in the submission made in the present case is squarely covered by the judgment of Hon....
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....e deposit. Ld. Counsel for the assessee also relied on the on decision of the Kerala High Court in the case of Olari Little Flower Kuries (P.) Ltd. v. UOI [2022] 134 taxmann.com 111 (Kerala) which distinguished the above Gujarat High Court decision and held that Provisions of section 200A were amended to enable computation of fee payable under section 234E at time of processing of return and said amendment came into effect from 1-6-2015, thus, intimations issued under section 200A dealing with fee for belated filing of TDS returns for period prior to 1-6-2015 were invalid.In response, the Ld. Ld. Departmental Representative relied on the observations made by Ld. CIT(A) in the appeal order. 6. We have heard the rival contentions and perusal the material on record. We note that in the present facts, the assessee had initially deposited the entire TDS in respect of purchase of immovable property on 24-11-2014 u/s 194-IA of the Act i.e. within the due date from purchase of immovable property. Due to certain technical error committed (incorrect interchanging of PAN numbers of buyer and seller in online filing of Statement 26QB), the seller could not get credit of TDS and later, on th....
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....5. Ld. CIT(A) also did not appreciate that had the assessee at the time of initial deposit of TDS mentioned the correct PAN numbers i.e. had the assessee not committed the aforesaid technical error, there would have been no question of levy of interest u/s 234E of the Act. The Ld. CIT(A) also did not take cognizance of the fact that in the facts of the case, there was no loss caused to the Revenue. While, respectfully following the jurisdictional High Court in the case of Rajesh Kourani supra, we are also of the view that machinery provisions cannot override the substantive provisions, but in the instant facts, the issue for consideration and facts before us are different as compared to Rajesh Kourani case (supra), on which reliance has been mechanically placed by Ld. CIT(A). It is a settled law as held by the Hon'ble Gujarat High Court in the case of Rajkot Engineering Association v. UOI [1986] 26 Taxman 60 (Gujarat) that the Revenue authorities should adopt a judicial approach and consider all attendant circumstances. Again, the Gujarat High Court in the case of Trust For Reaching The Unreached Through Trustee v. Commissioner of Income Tax (Exemptions), Ahmedabad[2021] 126 ta....