2022 (5) TMI 999

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....1/2022 for Asstt. Year 2013-14 bearing ITA No. 9/Nag/2022 against order of Hon'ble CIT(A) u/s. 250 of IT. Act 1961 dated 29/09/2021. 2. The assessee has received letter on 02/03/2022 communicating defects in the aforesaid appeal filed by assessee. In letter it has been observed that appeal is time barred by 39 days. 3. It is respectfully submitted that Hon'ble Supreme Court in Miscellaneous Application No. 21 of 2022, in Miscellaneous Application No. 665 of 2021 and in Suo Motto Writ Petition(C) No. 3 of 2020 "In Re-Cognizance for extension of limitation" has held that in case where the limitation would have expired during the period between 15/03/2020 till 28/02/2022 notwithstanding the actual balance period of limitation remaining all persons shall have a limitation period of 90 days from 01/03/2022. The copy of judgement is enclosed. In the case of assessee statutory limitation for filing of appeal expired on 29/11/2021. In terms of decision of Hon'ble Apex Court assessee can file an appeal upto 29/05/2022. The assessee has filed an appeal on 07/01/2022. On above facts and in the light of judgement of Hon'ble Apex Court there is no delay in fili....

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....and 2014-15 before the first appellate authority. The assessee being aggrieved filed appeals before the learned CIT(A). 8. The learned CIT(A) confirmed the order of the Assessing Officer by observing as under:- "A.Y. 2013-14 5.0 The above submissions of the appellant have been duly considered. The decision on the appeal is as follows. Firstly, it has to be pinpointed that the appellant wrongly understood that the order passed by the AO was under section 200A and to that extent wrongly stated order appealed against as order under section 200A in Form-35. The AO had passed a separate order levying fee u/s. 234E for the delay in filing quarterly statements of TDS as per the directions of the CIT(A). Since this was not the intimation under section 200A, the time limitation mentioned in the proviso to sec 200A does not apply. Therefore, the argument that the order was time barred is not correct. Secondly, it is noted that the amendment through Finance Act, 2015 was in 200A, enabling the levy of late filing fees u/s. 234E in an intimation under section 200A issued after processing the TDS statement. As mentioned above, the order above, the order appealed against is n....

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....addition If these two provisions prescribing fee and penalty respectively, clause (k) of sub-section (2) of section 272A became redundant and by adding a proviso to the said section, this effect was therefore limited upto 01.07.2011. 17. In essence, section 234E thus prescribed for the first time charging of a fee for every day of default in filing of statement under sub-section (3) of section 200 or any proviso to sub-section (3) of section 206C. This provision was apparently added for making the compliance of deduction and collection of tax at source, depositing it with Government revenue and filing of the statements more stringent. 18. In this context, we may notice that section 200A which pertains to processing of statements of tax deducted at source provides for the procedure once a statement of deduction of tax at source is filed by the person responsible to do so and authorizes the Assessing Officer to make certain adjustments which are prima-facie or arithmetical in nature. The officer would then send an intimation of a statement to the assessee. Prior to 01.06.2015, this provision did not include any reference to the fee payable under section 234E of the ....

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....justment was brought within the fold of section 200A of the Act. This would have one direct effect. An order passed under section 200A of the Act rectifiable under section 154 of the Act and is also appealable under section 246A. In absence of the power of authority to make such adjustment under section 200A of the Act, any calculation of the fee would not partake the character of the intimation under said provision and it could be argued that such an order would not be open to any rectification or appeal. Upon introduction of the recasted clause (c), this situation also would be obviated. Even prior to 01.06.2015, it was always open for the Revenue to calculate fee in terms of section 234E of the Act. The Karnataka High Court in case of Fatheraj Singhvi (supra) held that section 200A was not merely a regulatory provision, but was conferring substantive power on the authority. The Court was also of the opinion that section 234E of the Act was in the nature of privilege to the defaulter if he fails to pay fees then he would be rid of rigor of the penal provision of section 271H of the Act With both these propositions, with respect, we are unable to concur. Section 200A is not a sour....

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....ann.com 115 (Kerala) United Metals vs ITO (TDS) iii) 134 taxmann.com 111 (Kerala) Olari Little Flower Kuries (P.) Ltd. vs UOI. iv) ITA No. 3681/Del./2017 (A.Y. 2015-16) Shri Raj Veer Singh vs ACIT, CPC-TDS v) 83 taxmann.com 137 (Gujarat) Rajesh Kourani vs UOI vi) 88 ITR 192(SC) Vegetable Products Ltd. F) Hon'ble Kerala High Court has in its judgment dated 28/10/2021 judicially noticed at para 11 that judgment of Hon'ble Gujarat High Court has not considered Circular No. 19/2015. G) It is settled position of law that when there are conflicting decisions, the view taken in favour of the assessee should be followed. Reliance on the judgment of Hon'ble ITAT Delhi Bench in the case of Shri Raj Veer Singh vs ACIT vide order dated 09/07/2021. H) Levy of Fee u/s. 234E be cancelled." 10. Insofar as grounds no. 1 and 2, are concerned, the learned Counsel for the assessee submitted that- "2. Ground No. 1 & 2 : Order passed by A.O. is barred by limitation. A) In the case of assesses IDS statements were submitted for Financial Year 2012-13 on 21/09/2013 and in respect to Financial Year 2013-14 on 29/....

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....us. While going through the facts of the present case and in view of the submissions of the learned Counsel for the assessee and on a careful perusal of the case laws relied upon by him, we find that the issue is covered in favour of the assessee and in all the following decisions which are listed below wherein it has been held that no levy under section 234E of the Act can be made prior to 1st June 2015 in respect to the statement of TDS filed for the financial year 2013-13 and 2013-14. i) Eurotech Maritime Academy (P.) Ltd. vs ITO (TDS), 137 taxmann.com 63 (Kerala); ii) United Metals vs ITO (TDS), 137 taxmann.com 115 (Kerala); iii) Olari Little Flower Kuries (P.) Ltd. vs UOI, 134 taxmann.com 111 (Kerala); iv) Shri Raj Veer Singh vs ACIT, CPC-TDS, ITA No. 3681/Del./2017 (A.Y. 2015-16); v) Rajesh Kourani vs UOI, 83 taxmann.com 137 (Gujarat); vi) Vegetable Products Ltd., 88 ITR 192 (SC). 13. We also find from the record that for the financial year 2012-13 and 2013-14, the assessee has submitted statement of TDS in the financial year 2013-14. In respect of financial year 2012-13, it has been submitted on 13th September 2013 and....