TaxTMI 
TaxTMI 
2024 (1) TMI 551
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.... delay of 645 days in filing the appeal before this Tribunal. The Ld.AR submitted that during the relevant period Hon'ble Supreme Court in Suo Moto Writ Petition (C) No.3/2020 extended the period of limitation with effect from 15.03.2022 to 28.02.2022 and, therefore, the Ld.AR submitted that the present appeals has been filed before this Tribunal on 10.11.2023 thereby causing a net effective delay of 530 days. 4. He thus humbly prayed that this Tribunal may take a lenient and compassionate approach and condone the delay of 530 days in filing the present appeal against the orders of the Ld.CIT(A) passed under section 250 of the Act and hear the same on merits for the advancement of substantial cause of justice. 5. He also relied on the decision of Hon'ble Apex Court in the case of COLLECTOR, LAND ACQUISITION Vs MST. KATIJI AND OTHERS reported in (1987) 167 ITR 471, in the case of CONCORD OF INDIA INSURANCE CO LTD Vs SMT. NIRMALA DEVI AND OTHERS reported in 118 ITR 507 and decision of Hon'ble Supreme Court in the case of M/S. MELA RAM & SONS Vs CIT (PUNJAB) reported in 29 ITR 607. He also relied on the decision of recent judgment of Hon'ble Supreme Court in case....
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....t when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. 11. The decision of Hon'ble Mumbai Benches in the case of Y.P. Trivedi vs. JCIT in ITA No. 5994/Mum/2010 dated 11/07/2012 held that delay in filing the appeal due to CA's fault is bona fide and must be condoned and the delay of 438 days was condoned by observing as follows: "5 After considering the rival submissions and carefully gone through the affidavit filed by the assessee as well as the affidavit of Shri Sunil Hirawat, CA of the assessee, we note that the facts of the case do not suggest that the assessee has acted in a malafide manner or the reasons explained is only a device to cover an ulterior purpose. It is settled proposition of law that the Court should take a lenient view on the matter of condonation of delay. However, the explanation and the reason for delay must be bonafide and not merely a device to cover an ulterior purpose or an attempt to save limitation in an underhand way. The Cour....
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....delay. In fact, he runs a serious risk. (6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 14. Thus from the above decisions, when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non deliberate delay. 15. In the case on hand, the issue on merit is regarding issue involved in all these appeals are with regard to dismissing the appeal of the assesee by the CIT(A) for challenging the fee imposed u/s 234(E) for delay in filing the TDS return, which is covered in favour of assessee by the decision of Hon'ble Karnataka High Court. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Hon'ble Apex Court, referred to hereinabove if the application of the assessee for condoning the delay is rejected, it would amount to legalize injustice on technical ground, when the Tribunal is capable o....
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....as under:- 21. The ld.AR of the assessee submitted that the CPCTDS while processing the return wrongly charged fee u/s 234E for belatedly filing the TDS return. The Act has been amended from 01/06/2015 and prior to this period, levy of fee was in the statute book, therefore, the assessee is not liable for the period till 01/06/2015 and the issue is squarely covered in favour of the assessee by the decision of jurisdictional High Court in the case of Fatheraj Singhvi [2016] 73 taqxmann.com 252 [kar]Patheran Vs. UOI and he also relied on other judgments:- 1) Manoj Kumar Jaiswal [2019] 104 taxmann.com (Bang - Trib) 2) Karnataka Grameena Bank [2022] 145 taxmann.com 192 [Bang - Trib) 3) Mindlogicx Infratec Ltd., ITA No.462 to 483/Bang/2022 dt. 19.07.2022 22. The ld.DR relied on the order of the lower authorities. 23. Considering the rival submissions we note that the assessee has deducted TDS and filed TDS return belatedly as prescribed in the Act, therefore, the CPC-TDS imposed levy for delay in filing the consequential TDS return. This issue has been settled by the various decision of jurisdictional High Court in the cases cite supra. For the sake o....
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....emand is made and the intimation given under section 200A includes the computation and the determination of the fee payable by the appellant-petitioners.[Para 13] Section 234E has come into force on 1-7-2012. Therefore, one may at the first blush say that, since section 234E is a charging section for fee, the liability was generated or had accrued, if there was failure to deliver or cause to be delivered the statement/s of TDS within the prescribed time. But, section 234E cannot be read in isolation and is required to be read with the mechanism and the mode provided for its enforcement. As observed hereinabove, when section 234E was inserted in the Act simultaneously, section 271 H was also inserted in the Act providing for the penalty for failure of furnishing of statements etc. Therefore, if there was failure to submit the statement for TDS as per section 234E, the fee payable is provided but the mechanism provided was that if there was failure to furnish statements within the prescribed date, the penalty under section 271 H (1) and (2) could be imposed. However, under sub-section (3) of section 271H, the exception is provided that no penalty shall be levied for the failure refer....
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....ction 271 H.[Para 19] 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 271 H(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. [Para 20] 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 true that, a regulatory mechanism by insertion of any provision made in the statute book, may have a retroactive character....
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....esaid view will not permit the deductor to reopen the said question unless he has made payment under protest.[Para 22] 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.[Para 23] 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. In view of the reasons recorded, when the amendment made under section 200A which has come into effect on 1-6-2015 is held to be having prospective effect, no computation of fee for the demand or the intimation for the fee ....