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2023 (6) TMI 808

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..... preferred by the assessee company against the order of the Ld. CIT(A)/NFAC dated 23.08.2022 for Q2 Q4 of AY. 2013-14 respectively confirming the order u/s 234E of the Income Tax Act, 1961 (hereinafter the Act ). 2. The grounds of appeal preferred by the assessee are as under: - (1) The order of the authorities below are against Law, facts and circumstance of the case (2) The order U/s 234 E is void ab intio since there is no charging provision giving power to the department to charge and collect late fee U/s 234 E for the assessment year |2013-14. The Sec.200 A was amended only with effect from 01-06-2015 to give the assessing authority the power to impose late fee u/s 234E for the period under appeal. Hence there 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 Tribu .....

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..... under: - 6. Indeed, the facts are not in dispute. The petitioner submitted quarterly returns for the assessment years 2012-2013 and 2013-2014. After processing them, the assessing officer issued the Exts.P1 to P4 intimations, requiring the petitioner to pay the late fee. The petitioner has assailed that. To put the issue in perspective, we need to examine the statutory provisions. To begin with, Section 200A before 1.6.2015 stood as follows: Processing of statements of tax deducted at source. 200A. (1) Where a statement of tax deduction at source 8a[or a correction statement] has been made by a person deducting any sum (hereafter referred to in this section as deductor) under section 200, such statement 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 t .....

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..... eferred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be (3) The amount of fee referred to in sub-section (1) shall be paid before delivering or causing to be delivered a statement in accordance with sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C. 9. Interpreting Section 200A and Section 234E, the Karnataka High Court has held in Fatheraj that when the statute confers no express power under section 200A before 01.06.2015 on the authority either to compute and collect any fee under section 234E, the demand for the period before 01.06.2015 could not be sustained. 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 as .....

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..... the Income-tax Act at the time of processing of TDS statements. Therefore, the provisions of section 200A of the Income-tax Act has been amended so as to enable computation of fee payable under section 234E of the Income-tax Act at the time of processing of TDS statement under section 200A of the Incometax Act. 12. Further, in para 47.20, the Circular has clearly emphasized that these amendments would take effect only from 1st June, 2015. Under those circumstances, I hold that the amendment is prospective and the demand under exts. P1 to P6 demand notices cannot be sustained. I, accordingly, set aside the Exts. P1 to P6 demand 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 .....

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..... Rs.6,200/- (ITA. No.887/Coch/2022) and late filing fee u/s 234E of the Act for Quarter-2 for FY. 2012-13 at Rs.9,153/- (ITA. No.888/Coch/2022) has been levied. We note that only after 1st June, 2015 while processing of a TDS/TCS statement and issuance of intimation u/s 200A/206CB of the Act in respect thereof, an adjustment could also be made in respect of fee , if any shall be computed in accordance with the provisions of section 234E of the Act. Prior to 1st June, 2015, there was no enabling provision therein for raising a demand in respect of levy of fees u/s 234E of the Act. Therefore, no such levy could have been effected, [ 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 .....

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