TaxTMI 
TaxTMI 
2023 (6) TMI 808
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....e had been no jurisdiction to impose fee by the concerned authority Assistant Commissioner of Income Tax, C.P.C - TDS, Ghaziabad. (3) The charging of fee levied U/s 234 E(Quarter-4) is therefore illegal and liable to be cancelled. (4) The authority below ought have considered the judgment of the Hon' Income Tax Appellate Tribunal, Cochin Bench in ITA 145/Coch/2017 dated 17-09-2018 in similar issue. Appellant could not file the copy of the Tribunal's judgments before the first appellate authority. The said judgment is applicable and binding on appellant. (5) Appellant would be put to much hardship and damages if the fee charged is not cancelled." 3. Brief facts as noted by the Ld. CIT(A) for both ITA Nos. 887/Coch/2022 & 888/Coch/2022 which reads as under: - ITA. No.887/Coch/2022 "The assessee is a private limited company engaged in the business of wholesale import and sale of timbers. The assessee failed to file the TDS/TCS return of Quarter-4 for FY 2012-13 on or before the due date prescribed in this regard. The AO, TDS CPC, Ghaziabad passed an order u/s 143(1) on 10.09.2013. Subsequently, the AO, TDS CPC, Ghaziabad passed an order u/s 15....
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....nt shall be processed in the following manner, namely:- (a) the sums deductible under this Chapter shall be computed after making the following adjustments, namely:- (i) any arithmetical error in the statement; or (ii) an incorrect claim, apparent from any information in the statement; (b) the interest, if any, shall be computed on the basis of the sums deductible as computed in the statement; (c) the sum payable by, or the amount of refund due to, the deductor shall be determined after adjustment of amount computed under clause (b) against any amount paid under section 200 and section 201, and any amount paid otherwise by way of tax or interest; (d) an intimation shall be prepared or generated and sent to the deductor specifying the sum determined to be payable by, or the amount of refund due to him under clause (c); and (e) amount of refund due to the deductor in pursuance of the determination under clause (c) shall be granted to the deductor; (f) the amount of refund due to the deductor in pursuance of the determination under clause (d) shall be granted to the deductor; Provided that no intimation under this....
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....d. Fatheraj in fact observes: "14. We may now deal with the contentions raised by the learned counsel for the appellants. The first contention for assailing the legality and validity of the intimation under section 200A was that, the provision of section 200A(1)(c), (d) and (f) have come into force only with effect from 1.6.2015 and hence, there was no authority or competence or jurisdiction on the part of the concerned Officer or the Department to compute and determine the fee under section 234E in respect of the assessment year of the earlier period and the return filed for the said respective assessment years namely all assessment years and the returns prior to 1.6.2015. It was submitted that when no express authority was conferred by the statute under section 200A prior to 1.6.2015 for computation of any fee under section 234E nor the determination thereof, the demand or the intimation for the previous period or previous year prior to 1.6.2015 could not have been made. 10. But the Gujarat High Court has taken a contrary stand in Rajesh Kourani. It has held: - "In plain terms, Section 200A is a machinery provision providing mechanism for proce....
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....emand notices. NO order on costs." 6. The Division Bench of the Hon'ble Kerala High Court affirmed the aforesaid ratio of the single bench in the case of M/s Olari Little Flower Kuries (P.) Ltd. v. UoI [2022] 440 ITR 26 (Ker), after reproducing paras 20 to 23 of the decision in Fatheraj Singhvi (supra), and concluding it's findings, at para 6.1 of the Judgment, it expresses it's agreement therewith at para 6.2: "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." At Paras 21 & 22 of the decision in Fatheraj Singhvi (supra) Hon'ble High Court (Kar) specifically hold that the amendment vide Finance Act, 2015, w.e.f. 01/6/2015 would not have a retroactive effect as it confers a substantive power on the AO, and is not merely a regulatory mechanism, as held by the Hon'ble Gujarat High Court in Rajesh Kourani (supra). We also extract the afore-referred para 6.2, as follows, for ready reference: "....
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....ed, [ Refer the decisions of the Hon'ble High Court in the case of (i) M/s. Olari Little Flower Kuries Pvt. Ltd. Vs. Union of India, (ii) M/s. Sarala Memorial Hospital Vs. Union of India, (iii) M/s. Mayi Industries Vs. Union of India, (iv) M/s. Anadiyil Hospital Vs. Union of India,] Ergo, we hold that the order levying late 'fee' u/s 234E of the Act is bad in law and therefore, cancelled. 9. Before we part, we note that that appeals in the instant case arise not out of intimation u/s 200A(1) r.w.s. 234E of the Act, but u/s 154 of the Act r.w.s. 200A of the Act, suo moto made by the AO/TDS, CPC, Ghaziabad raising the demand inter alia the late 'fee' u/s 234E of the Act. The AO while passing the order u/s 154 of the Act has not given any reasons as to the mistake apparent on the face of the record. Anyway, since the late 'fee' for non-filing the statement of TDS/TCS [under section 200A(1)/206CB of the Act respectively] are no-longer res-integra as noted (supra), the action of AO/CPC u/s 154 of the Act cannot be sustained. In this context, it would be gainful to refer to the observation of this Tribunal in the case of Kerala Gramin Bank ITA. No. 797/Coch/2022 and others order dated....