TaxTMI 
TaxTMI 
2022 (10) TMI 485
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.... levying such late fee u/s 234E prior to 01-06-2015. We also observe that these cases before us pertains to Financial Years 2012-13, 2013-14, and 2014-15 and obviously the late fees were levied prior to 01-06-2015, which is therefore, not mandated as per law. The Pune Bench of the Tribunal in a group of cases in ITA No. 1201/PUN/2019 and others in the case of Nisar Mehboob Alam Khan and others, order dated 31-05-2022 on exact identical issue has held as follows: "10. We heard the rival submissions and perused the material on record. The issue in the present appeal relates to the condonation of delay in filing the appeal before the ld. CIT(A). At the outset, the issue in the appeal relates to the levy of late fees u/s 234E of the Act. The provisions of section 234E were inserted w.e.f. 1.6.2012. However, it is only w.e.f. 1.6.2015 an amendment was made u/s 200A providing the changing mechanism for levy of late fees u/s 234E of the Act. Resultantly, the late fee u/s 234E can be levied only prospectively i.e. w.e.f. 1.6.2015 as held by the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi vs. Union of India, 73 taxmann.com 252 and this ratio was followed by the Coo....
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.... the appeal, that he is careless, negligent and his conduct is lacking in bona fides. The Hon'ble Telangana High Court in the case of Thunuguntla Jagan Mohan Rao vs. DCIT, 427 ITR 204 (Telangana) after referring to the decision of the Hon'ble Supreme Court in the case of N. Balakrishnan vs. M. Krishnamurthy (1998) 7 SCC 123 (SC) held as follows :- "26. The Supreme Court in N. Balakrishnan v. M. Krishnamurthy [1998] 7 SCC 123 has held that the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice; and that rules of limitation are not meant to destroy the right of parties, but they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. It held that there is no presumption that delay in approaching the Court is always deliberate, and the words "sufficient cause" under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. It held that in every case of delay there can be some lapse on the part of the litigant concerned, but that alone is not enough to turn down his plea and to shut the door against him; and i....
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....enalty provision under Section 271H (1) (a) if he pays the fee within one year and complies with the requirement of subsection (3) of Section 271H. 20. In view of the aforesaid observations and discussion, two aspects may transpire one, for Section 234E providing for fee and given privilege to the defaulter if he pays the fee and hence, when a privilege is given for a particular purpose which in the present case is to come out from rigors of penal provision of Section 271H(1)(a), it cannot be said that the provisions of fee since creates a counter benefit or reciprocal benefit in favour of the defaulter in the rigors of the penal provision, the provisions of Section 234E would meet with the test of quid pro quo. 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 ....
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.....6.2015. However, we make it clear that, if any deductor has already paid the fee after intimation received under Section 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest. 23. In view of the aforesaid observation and discussion, since the impugned intimation given by the respondent-Department against all the appellants under Section 200A are so far as they are for the period prior to 1.6.2015 can be said as without any authority under law. Hence, the same can be said as illegal and invalid. 24. If the facts of the present cases are examined in light of the aforesaid observation and discussion, it appears that in all matters, the intimation given in purported exercise of power under Section 200A are in respect of fees under Section 234E for the period prior to 1.6.2015. As such, it is on account of the intimation given making demand of the fees in purported exercise of power under Section 200A, the same has necessitated the appellant-original petitioner to challenge the validity of Section 234E of the Act. In view of the reasons recorded by us hereinabove, when the amendment made under Sectio....
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....e under Section 234E as they relate to for the period of the tax deducted prior to 1.6.2015 are set aside. It is clarified that the present judgment would not be interpreted to mean that even if the payment of the fees under Section 234E already made as per demand/intimation under Section 200A of the Act for the TDS for the period prior to 01.04.2015 is permitted to be reopened for claiming refund. The judgment will have prospective effect accordingly. It is further observed that the question of constitutional validity of Section 234E shall remain open to be considered by the Division Bench and shall not get concluded by the order of the learned Single Judge." 14. The ratio of the above decision was followed by the Coordinate Bench of Pune Tribunal in the case of (i) Gajanan Constructions vs. DCIT, 73 taxmann.com 380, (ii) Maharashtra Cricket Association, Pune vs. DCIT, 74 taxmann.com 6 and (iii) Webtrust Co. In (India) Pvt. Ltd. ACIT, CPC (TDS) in ITA Nos.1818 & 1819/PUN/2018 for Assessment Years 2013-14 & 2014-15, order dated 02.11.2021. The decision rendered by the Hon'ble Bombay High Court in the case of Rashmikant Kundalia and Others (supra) does not come to the rescu....