TaxTMI 
TaxTMI 
2022 (6) TMI 1568
X X X X Extracts X X X X
X X X X Extracts X X X X
....are involved, all these appeals were heard together and are disposed off by this consolidated order. 2. At the outset, the Ld. AR fairly admitted that there has been a delay in filing the present appeals and the period of delay ranges from 110 days to 118 days. In this regard, it was submitted that the respective branches of the assessee's bank received the impugned orders during the period November, 2021 to April, 2022, which was a period, when third wave of COVID-19 pandemic was creating quiet a difficulty in compiling data. It was submitted that the entire state of Maharashtra and the city of Nagpur was under lockdown conditions in the month of January, 2022 and due to this, there were challenges in proper communication and getting all the documents in place. It was submitted that the delay so happened in filing the present set of appeals is not deliberate. It was further submitted that another reason for such delay was the statutory bank audit for FY 2021-2022, which was also underway during said period, where the Branch Managers and another staff members were involved in completion of statutory audit besides regular functioning of the bank. It was further submitted that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....herein the limitation period has been extended in view of the COVID-19 pandemic, the Revenue has no objection where the delay in filing the present set of appeals is condoned and the matter is heard on merits. 4. We have heard the rival contentions and perused the material available on record. Respectfully following the decision of the Hon'ble Supreme Court where the limitation period has been extended due to COVID-19 pandemic, the delay in filing the present set of appeals are hereby condoned and all the appeals are admitted for adjudication on merits. 5. Now coming to the merits of the case, in all these appeals, the assessee has challenged the levy of late filing fees under section 234E of the Act. 6. With the consent of both the parties, the case of the assessee in ITA No. 122/Nag/2022 was taken as a lead case for the purpose of present discussion. Briefly, the facts of the case are that the assessee bank in respect of its Umred Branch having TAN No. NGPB03048D filed its TDS statement (Form 26Q) for Q4 of FY 2012-13 on 15.07.2013 as against the due date of 15.05.2013 leading to a delay of 61 days. The ACIT TDS -CPC processed the TDS statement and issued an intimati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... provisions have come into force effective 01.06.2015 and therefore, there was no authority or competence or for that matter jurisdiction on the part of the Assessing Officer to compute and the determine fee under section 234E in respect of assessment years and the statements filed prior to 01.06.2015. It was submitted that where there is no express authority conferred by the statute for computation of any fee under section. 234E and the determination thereof, the demand or the intimation for the period prior to 01.06.2015 could not have been made by the Assessing officer. It was accordingly submitted that the intimation against the statements filed before 01.06.2015 levying late filing fee under section 234E deserves to be quashed. Further, our reference was specifically drawn to the CBDT circular No.19 of 2015 dated 27.11.2015, which was issued in the context of provisions introduced by the Finance Act, 2015 and our reference was drawn to paragraph 47.3 and 47.20 of the said circular, which reads as under :- "47.3 Finance (No.2) Act, 2009 inserted section 200A in the Income- tax Act which provides for processing of TDS statements for determining the amount payable or ref....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the fact that the amendment to section 200A w.e.f. 01.06.2015 has prospective effect and is not applicable for the period prior to 01.06.2015 and therefore, the levy of fee under section 234E for TDS returns filed pertaining to period prior to 01.06.2015 is without authority of law and therefore, deserve to be quashed. 11. It was further submitted that given the fact that there are three Different High Court's decisions on the issue of amendment to section 200A and whether the same should be read retrospective or prospectively, wherein the Hon'ble Karnataka High Court as well Hon'ble Kerala High Court are in favour of the assessee and Hon'ble Gujarat High Court is in favour of the Revenue, there is clearly a cleavage of opinion among these Hon'ble High Courts on the same issue and in light of Hon'ble Supreme court decision in case of CIT v/s Vegetable Products Ltd. 88 ITR 192 (SC) as well as CIT v/s Vatika Township P.Ltd. (2014) 367 ITR 466, the view in favor of the assessee needs to be followed. It was submitted that similar view has been taken by the Co-ordinate Delhi Benches in case of Bathline India Pvt Ltd Delhi v/s ACIT (ITA Nos. 9336 to 9341/Del/20....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... NGPB01751B 2012-13 Q4 24Q 14000 10-Feb-14 24-Jul-13 Armori Branch NGPB01735G 2012-13 Q4 26Q 10000 24-Jul-13 4-Jul-13 Armori Branch NGPB01735G 2013-14 Q3 26Q 11200 23-Mar-14 12-Mar-14 Sironcha Branch NGPB01733E 2013-14 Q1 26Q 5200 24-Feb-14 10-Aug-13 Yenapur Branch NGPB02084F 2012-13 Q4 26Q 14400 24-Feb-14 26-Jul-13 Yenapur Branch NGPB02084F 2013-14 Q2 26Q 18800 24-Feb-14 17-Jan-14 Yenapur Branch NGPB02084F 2014-15 Q2 26Q 13000 2-Jan-15 20-Dec-14 Nagpurmain Branch NGPB01638A 2012-13 Q4 27Q 39200 2-Mar-14 27-Nov-13 Ajnisquare Branch NGPB01664F 2012-13 Q2 24Q 5440 13-Nov-13 28-Aug-13 Ajnisquare Branch NGPB01664F 2012-13 Q3 24Q 12300 25-Oct-14 22-Oct-14 Mowar Branch NGPB01825F 2013-14 Q4 26Q 7188 21-Oct-14 15-Oct-14 Kalmeshwar Branch NGPB00262D 2013-14 Q3 26Q 5800 16-Mar-14 13-Feb-14 Butibori Branch NGPB01715A 2013-14 Q2 26Q 36600 19-Apr-14 16-Apr-14 Butibori Branch NGPB01715A ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Rajesh Kourani (supra). It was submitted that where the majority of the High Court decisions including the jurisdictional High Court decision are in favour of the Revenue, the same should be followed. 14. In his rejoinder, the ld. AR has submitted that the Co-ordinate Nagpur Benches decision in case of M/s. Rajyas Software Pvt Ltd (supra) has considered the Co-ordinate Pune Benches decision in case of Medical Superintendent Rural Hospital (supra) case and which has in turn duly considered the decision of Hon'ble Bombay High Court in case of Rashmikant Kundalia(supra) and has held that in the said decision, the Hon'ble High Court has only decided the constitutional validity of levy of fee under section 234E of the Act. It was submitted that the decision of the Hon'ble Jurisdictional High Court decision was therefore duly considered by the Nagpur Benches of the Tribunal while deciding the aforesaid appeal and being the decision of the Coordinate Benches, the same continues to have a binding effect from the stand point of consistency. Regarding Hon'ble Delhi High Court decision in case of Biswajit Das v/s UOI (supra), it was submitted that the said decision was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....amendment to section 200A which has come in effect from 1.6.2015 is having prospective effect and no demand for fee u/s 234E can be made in intimation issued for TDS deducted u/s 200A before 01.06.2015 and relevant findings contained at paras 21-24 read as under: "21. ...... 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 but, whether such provision provides for a mere regulatory mechanism or confers substantive power upon the authority would also be a aspect which may be required to be considered before such provisions is held to be retroactive in nature. Further, when any provision is inserted for liability to pay any tax or the fee by way of compensatory in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Section 200A of the Act 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 under Section 234E could be made for the TDS deducted for the respective assessment year prior to 1.6.2015. Hence, the demand notices under Section 200A by the respondent authority for intimation for payment of fee under Section 234E can be said as without any authority of law and the same are quashed a....