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M/s. Lakshminirman Bangalore Pvt. Ltd. And Others Versus The Deputy Commissioner of Income-Tax, Union of India And Others

2015 (8) TMI 379 - KARNATAKA HIGH COURT

Validity of Section 234E challenged - Fee for default in furnishing TDS return/statements - Whether it is ultra vires of Constitution of India and/or to declare by an appropriate writ that under the newly inserted Section 234E of the Act, fee could be levied only after affording the petitioners a reasonable opportunity and for consequential relief of quashing the intimations whereunder fee has been levied under Section 234E for late filing of TDS statements? - whether levy of fee under Section 2 .....

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st day of April of the assessment year to the date on which refund is granted as indicated in sub-section(1)(a) of the Act. A bare perusal of Section 271H which came to be inserted by Finance Act, 2012 with effect from 01.07.2012 would indicate it provides for levy of penalty for failure to furnish statements of tax deducted at source under Section 200(3) or under proviso to Section 206C or for furnishing incorrect information. As per sub-section (2), penalty will be not less than 10,000/- and i .....

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alty need not be imposed under Section 271H if reasonable cause is shown. The contention of the assessee is that there is no similar provision in the impugned provision namely Section 234E and as such it takes away the valuable right of the assessee. The said contention does not hold water inasmuch as Section 119(2)(a) enables the Board to issue general or special orders in respect of any class of incomes or class of cases from time to time, which includes sub-section(1A) of Section 201 and as s .....

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ided for from an arbitrary order passed under Section 234E. It must be noted that a right of appeal is not a matter of right but is a creature of the statute, and if the Legislature deems it fit not to provide a remedy of appeal, so be it. Even in such a scenario it is not as if the aggrieved party is left remediless. Such aggrieved person can always approach this Court in its extra ordinary equitable jurisdiction under Article 226/227 of the Constitution of India, as the case may be. We therefo .....

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from any vices for being declared to be ultra vires of the Constitution. - Decided against assessee. - Writ Petition No. 26589/2014 - Dated:- 12-6-2015 - Aravind Kumar, J. For the Appellants : Sri S Parthasarathi, Sri P Dinesh & Sri Jinita Chatterjee Adv. For the Respondent : Sri K V Aravind, Adv. ORDER In all these petitions the constitutional validity of Section 234E of the Income Tax Act, 1961 (for short 'Act') has been challenged contending it is ultra vires of Constitution of In .....

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, Chythanya K.K., S.R.Shivaprakash, Chaitanya V. Mudrabettu, Aravind V. Chavan, T.Suryanarayana, Smt.Lakshmy Iyengar, Ashok A. Kulkarni, Balram R. Rao, Smt.Vani H., Shankar A., learned advocates appearing for petitioners and Sri.K.V.Aravind, learned Senior standing counsel along with Sri.Jeevan J. Neeralagi appearing for respondents. 3. The learned advocates appearing for the petitioners have contended as under: (a) Levy or impost is regarded as a written or consideration for services rendered a .....

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State and it is quidpro- quo. In the absence of any services being rendered by the State to demand 'fee' or levy of such fee would be without authority of law. There being no rational or nexus to 'levy' of fee under the impugned provision for 'service' being rendered by the State (which is none), such imposition is bad-in-law, unconstitutional and ultra vires of the Constitution. (d) The impugned provision overrides the charging Section namely Section 4(1) of the Act or i .....

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ear, then both Sections 234E and 271H will be attracted for the same default and no person can be punished for the same default/offence more than once and it is hit by Article 20(2) of the Constitution of India. (g) Impugned provision is against the principle of "audi alterum partem" - no one should be condemned unheard, inasmuch as Section 272A(2)(k) was replaced by introduction of two Sections namely Section 234E and 271H and undisputedly as per repealed Section 272A(4) of the Act su .....

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cted at source visa-viz., 'taxes on income' as envisaged in Entry 82 of List I of Schedule 7. (i) Taxes having been deducted at source and having been remitted to the credit of the Central Government by the deductors within the stipulated time, no loss is caused to exchequer and as such the impugned levy under Section 234E of the Act amounts to abuse of legislative power. (j) The impugned provision is violative of Article 19(1)(g) of the Constitution of India as it imposes unreasonable r .....

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principles of natural justice. (l) The Department itself is not clear as to whether it is a fee' or a penalty' or what service is being rendered and if so, to whom. But on the other hand, the objects or reasons for introducing the impugned Section 234E would indicate it is qualitatively imposition of penalty. (m) When there is a civil obligation and consequences which flow from non compliance entails such person of being extended an opportunity to explain. In the absence of such in built .....

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dgments: (1) High Court of Judicature at Bombay - W.P.771/2014 - Mr.Rashmikant Kundalia and another Vs Union of India and others (2) 2006 STC Vol.145 544 - Jindal Stainless Ltd., and another Vs State of Haryana and others (3) AIR 1996 SC 767 - Secretary to Government of Madras and anr Vs P. R. Sriramulu and anr (4) AIR 1989 SC 100 - P.M.Ashwathanarayana Setty and others Vs State of Karnataka and others (5) AIR 2003 SC 4650 - State of U.P. and others Vs Vam Organic Chemicals Ltd., and others (6) .....

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2) ITA Nos.2564/2005 C/W 2565/2005 - Commissioner of Income Tax and anr Vs Manjunatha Cotton and Ginning Factory (13) (2006) 206 CTR 0175 - Civil Appeal No.4633/2006 - Rajesh Kumar and ors Vs Deputy Commissioner of Income tax and others (14) (2008)216 CTR 0303 - Civil Appeal Nos.2783 & 2784/2008 - Sahara India (Firm) Vs Commissioner of Income Tax and anr (15) (2010)234 CTR 0153 - Civil Appeal Nos.7541 & 7542/2010- GE India Technology Centre (P) Ltd. Vs Commissioner of Income Tax and anr .....

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s K.V.Aravind and Jeevan J. Neeralagi would support the impugned provision and contend that the 'fee' leviable by the impugned provision has nothing to do with quantum of money involved and it is based on the number of days delay in filing the TDS statements. They would elaborate their submissions by contending that tax deduction at source (TDS) is one of the modes of collection of taxes which after deduction by the deductor, same is required to be credited to the account of the Central .....

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e is an obligation on the Department to process the income tax returns filed by the assessee within specified period and such processing can be done only when the information relating to the details of tax deducted is furnished in the statement filed by the deductor within the prescribed time. Such timely process is the bedrock of efficient tax administration system and in cases of where refund claims are not processed timely, it results in: - Confidence of a general tax payer being eroded. - La .....

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mitigate the hardship Section 119(2)(a) simultaneously introduced along with the impugned provision and it would act as a succor. It is also contended that services rendered by the State need not be direct for levy of fee and the principle of quid-pro-quo for levy of fee would not be attracted to the facts of the present case and even otherwise if remote nexus to services rendered is present, it would suffice to sustain the constitutional validity. 7. Sri.K.V.Aravind, learned panel counsel appea .....

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cipal Corporation of Delhi & others vs. Mohd. Yasin (2) (1983) 3 SCC 353- Sreenivasa General Traders & Others vs. State of Andhra Pradesh & Others (3) (1995) 1 SCC 655- Krishi Upaj Mandi Samiti & Others vs. Orient Paper & Industries Ltd., (4) (2004) 8 SCC 556- State of H.P & Others vs. Shivalik Agro Poly Products & others (5) (1995) 215 ITR 758 (kar.) Union Home Products Ltd & Others vs. Union of India & others (6) 1989 Supp(1) SCC 696- P.M. Aswathanarayana Se .....

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e Tax Act, 1961 inserted by Finance Act, 2012 is to be struck down or its validity is to be upheld? PREFACE: 9. The Courts normally lean against a construction which reduces the statute to a futility. The maxim "ut res magis valeat quam pereat" - a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention. It is on application of this principle that Courts while pronouncing upon the constitutionality of a statute .....

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rather than reject it as a nullity". 10. A statute is designed to be workable, and the interpretation thereof by the Courts should be to secure that object, unless crucial omission or clear direction makes that end unattainable. Therefore, the Courts would reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language and if the choice is between two interpretations the Courts would accept the bolder construction .....

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llenge. 11. Keeping the above principles in mind, the challenge to the vires of Section 234E of the Income Tax Act in these petitions is being examined. This Court is of the considered view that it would be necessary to take note of the relevant provisions of the Act which have bearing on the rival contentions raised in these writ petitions and as such they are extracted herein below and same is analysed, discussed in the background of the case laws and the conclusion is accordingly drawn. Charg .....

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income of a period other than the previous year, income-tax shall be charged accordingly. Instructions to subordinate authorities. 119. (1) xxx (2) Without prejudice to the generality of the foregoing power,- (a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of Sections [115P, 115S, 115WD, 115 .....

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ction of revenue or the initiation of proceedings for the imposition of penalties and any such order may, if the Board is of opinion that it is necessary in the public interest so to do, be published and circulated in the prescribed manner for general information; Duty of person deducting tax.- 200. (1) Any person deducting any sum in accordance with [the foregoing provisions of this Chapter] shall pay within the prescribed time, the sum so deducted to the credit of the Central Government or as .....

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e Central Government within the prescribed time, [prepare such statements for such period as may be prescribed] and deliver or cause to be delivered to the prescribed income-tax authority or the person authorised by such authority such statement in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed. (Provided that the person may also deliver to the prescribed authority a correction statement for rectification of any mistake or to ad .....

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sum of two hundred rupees for every day during which the failure continues. (2) The amount of fee referred 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 subsection (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. (4) The provisions of this section shall apply to a statement r .....

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statement within the time prescribed in sub-section (3) of Section 200 or the proviso to subsection (3) of Section 206C ; or (b)furnishes incorrect information in the statement which is required to be delivered or cause to be delivered under sub-section (3) of Section 200 or the proviso to sub-section (3) of Section 206C. (2) The penalty referred to in subsection (1) shall be a sum which shall not be less than ten thousand rupees but which may extend to one lakh rupees. (3) Notwithstanding anyth .....

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me prescribed for delivering or causing to be delivered such statement. (4) The provisions of this section shall apply to a statement referred to in subsection (3) of Section 200 or the proviso to sub-section (3) of Section 206C which is to be delivered or caused to be delivered for tax deducted at source or tax collected at source, as the case may be, on or after the 1st day of July, 2012. Penalty for Failure to Answer Questions, Sign Statements, Furnish Information, Returns or Statements, Allo .....

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B. Notwithstanding anything contained in the provisions of (clause (b) of sub-section (1) of) (Section 271, Section 271A, Section 271AA), Section 271B, (Section 271BA), (Section 271BB), Section 271C, (Section 271CA), Section 271D, Section 271E, (Section 271F, Section 271FA), (Section 271FB), (Section 271G), (Section 271H), clause (c) or clause (d) of sub-section (1) or sub-section (2) of Section 272A, sub-section (1) of Section 272AA) or (Section 272B or) sub-section (1) (or sub-section (1A)) of .....

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r Chapter XVII-B, shall, in accordance with the provisions of sub-section (3) of Section 200, deliver, or cause to be delivered, the following quarterly statements to the Director General of Income-tax (Systems) or the person authorised by the Director General of Income-tax (Systems), namely:- (a) Statement of deduction of tax under Section 192 in Form No. 24Q; (b) Statement of deduction of tax under Sections 193 to 196D in- (i) Form No. 27Q in respect of the deductee who is a nonresident not be .....

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(4) of the said Table, if the deductor is a person other than the person referred to in clause (i) 3) (i) The statements referred to in subrule (1) may be furnished in any of the following manners, namely:- (a) furnishing the statement in paper form; (b) furnishing the statement electronically under digital signature in accordance with the procedures, formats and standards specified under sub-rule (5); (c) furnishing the statement electronically along with the verification of the statement in Fo .....

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enty or more, the deductor shall furnish the statement in the manner specified in [item (b) or item (c) of clause(i)]. (iii) Where deductor is a person other than the person referred to in clause (ii), the statements referred to in sub-rule (1) may, at his option, be delivered or cause to be delivered in the manner specified in [item (b) or item (c) of clause (i)]. (3A) A claim for refund, for sum paid to the credit of the Central Government under Chapter XVII-B, shall be furnished by the deduct .....

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rnish particulars of the tax paid to the Central Government including book identification number or challan identification number, as the case may be; (v) furnish particulars of amount paid or credited on which tax was not deducted in view of the issue of certificate of no deduction of tax under Section 197 by the Assessing Officer of the payee; (vi) furnish particulars of amount paid or credited on which tax was not deducted in view of the compliance of provisions of sub-section (6) of Section .....

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e purposes of furnishing and verification of the statements or claim for refund in Form 26B and shall be responsible for the dayto- day administration in relation to furnishing and verification of the statements or claim for refund in Form 26B in the manner so specified.] (6) Where a statement of tax deducted at source is to be furnished for tax deducted before the 1st day of April, 2010, the provisions of this rule and rule 37A shall apply as they stood immediately before their substitution or .....

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deducted, continues to be responsible. Sub-section (3) of Section 200 would indicate that a person deducting any sum is required to deliver to the prescribed authority such statement in the form verified by setting forth the particulars within the time prescribed. Rule 31A of the Rules prescribe the various Forms under which quarterly statements are required to be delivered or cause to be delivered by the deductor in accordance with Section 200(3) of the Act to the Director General of Income Ta .....

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at source under the foregoing provisions of Chapter XVII is in addition to and without prejudice to any other mode of recovery provided in the Act. Section 203 makes it obligatory on the person deducting tax to issue a certificate to the person from whom the tax has been deducted. Section 203A provides that it is obligatory on the part of a person who is liable for tax deduction at source to get this number within the prescribed time and it is also obligatory for such person to quote this number .....

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ncome, tax has been deducted or in respect of whose income, tax has been paid. Section 204 defines persons responsible for paying the tax deducted at source. Such responsibility depends upon category of payment. Section 205 makes it clear that where tax is deductible at source under the provisions of the Act, the assessee himself will not be called upon to pay the tax to the extent to which tax had been deducted from the income. Section 206 makes it obligatory on the part of the person deducting .....

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ductible or collectable as per Section 234E of the Act. DISCUSSION AND CONCLUSION: 13. The main thrust of the arguments addressed by the learned advocates appearing on behalf of the petitioners as noticed hereinabove is that the levy of fee under Section 234E for default in furnishing the statements is in the guise of penalty and there is no nexus to the services rendered by the department. In order to examine as to whether the fee charged under Section 234E is in fact fee or penalty or compensa .....

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4A of the Act would indicate that where refund of any amount becomes due to the assessee under the Act, such assessee would be entitled to receive in addition to the amount of refund of tax, simple interest at the rate of one-half percent for every month or part of a month comprised in the period from the 1st day of April of the assessment year to the date on which refund is granted as indicated in sub-section(1)(a) of the Act. A bare perusal of Section 271H which came to be inserted by Finance .....

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here was reasonable cause for such failure. Section 273B has also been amended by adding Section 271H and as already noticed under Section 271H(2)(k) penalty can be imposed for failure to furnish statement within prescribed time. However, by incorporating Section 271H in Section 273B, it would indicate that penalty need not be imposed under Section 271H if reasonable cause is shown. The contention of the assessee is that there is no similar provision in the impugned provision namely Section 234E .....

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evy of fee contemplated under the impugned provision namely as to whether it is in disguise a 'tax' or a 'fee simplicitor' or it is 'compensatory tax', it requires to be noticed that tax is a compulsory extraction of money by the Government and fee is an amount received towards expenditure for rendering the service. The Hon'ble Apex Court in the case of THE COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS V. SRI LAKSHMINDRA THIRTHA SWAMIAR OF SRI SHIRUR MUTT, reported .....

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p;OTHERS VS. ORIENT PAPER & INDUSTRIES LTD., reported in (1995) 1 SCC 655 and held that the power of any legislature to levy a fee is conditioned by the fact that it must be by and large quid pro quo for the services rendered. However, co-relationship between the levy and services rendered is one of general character and not of mathematical exactitude. It came to be held by the Hon'ble Apex Court, all that is necessary is that there should be relationship between levy of the fees and ser .....

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imposition of fee in respect of every one of the items dealt with in the list itself, except fees taken in Court. (2)The tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered. There is no quid pro quo between the taxpayer and the public authority. It is a part of the common burden and the quantum of imposition upon the taxpayer depends generally upon his capacity to pay. (3)Fee is a charge for a special service .....

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or coerciveness is present in all kinds of impositions though in different degrees and it is not totally absent in fees. Hence it cannot be the sole or even a material criterion for distinguishing a tax from fee. Compulsion lies in the fact that payment is enforceable by law against an individual in spite of his unwillingness or want of consent and this element is present in taxes as well as in fees. (5)The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a .....

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ate action. A fee is a sort of return or consideration for services rendered and hence it is primarily necessary that the levy of fee should on the face of the legislative provision be correlated to the expenses incurred by Government in rendering the services. As indicated in Article 110(2) of the Constitution ordinarily there are two classes of cases where Government imposes fees upon persons. The first is of grant of permission or privilege and the second for services rendered. In the first c .....

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nt does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered. (6)There is really no generic difference between tax and fee and the taxing power of the State may manifest itself in three different forms, viz., special assessments, fees and taxes. Whether a cess is tax or fee, would depend upon the facts of each case. If in the guise of fee, the legislature imposes a tax it is for the Court on a scrutiny of the scheme of the levy .....

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the method prescribed by the legislature for recovering the levy by itself alter its character. The method is a matter of convenience and though relevant, has to be tested in the light of other relevant circumstances. (7)It is not a postulate of a fee that it must have relation to the actual service rendered. However, the rendering of service has to be established. The service, further, cannot be remote. The test of quid pro quo is not to be satisfied with close or proximate relationship in all .....

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o is not possible or even necessary to be established with arithmetical exactitude. But it must be established broadly and reasonably that the amount is being spent for rendering services to those on whom the burden of the fee falls. There is no postulate of a fee that it must have a direct relation to the actual services rendered by the authorities to each individual to obtain the benefit of the service. The element of quid pro quo in the strict sense is not always a sine qua non for a fee. The .....

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s not a criterion on which alone it can be said that the levy is of the nature of a tax. The legislature has power to enact appropriate retrospective legislation declaring levies as fees by denuding them of the characteristics of tax. (9)It is not necessary that the amount of fees collected by the Government should be kept separately. In view of the provisions of Article 266, all amounts received by the Governments have to be credited to the Consolidated Funds and to the public accounts of the r .....

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that the element of quid pro quo stricto senso is not always a sine qua non of a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in very tax. We may, xxx (AIR 1980 SC 1008 at p.1015): the element of quid pro quo xxx it par took the nature of a tax. It seems that the Court proceeded on the assumption that the element of quid pro quo must always be present in a fee. The traditional concept of quid pro quo is undergoing transformation." 16. The Hon' .....

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capacity to pay. In the case of "a fee", the basis is the special benefit to the payer (individual as such) based on the principle of equivalence. When the tax is imposed as a part of regulation or as a part of regulatory measure, its basis shifts from the concept of "burden" to the concept of measurable/quantifiable benefit and then it becomes "a compensatory tax" and its payment is then not for revenue but as reimbursement/ recompense to the service/facility prov .....

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be always a sine qua non for levy of fee. If there is broad correlationship between the two it would suffice. The Hon'ble Apex Court in MUNICIPAL CORPORATION OF DELHI & OTHERS VS. MOHD. YASIN reported in (1983) 3 SCC 229 has held to the following effect: "9. What do we learn from these precedents? We learn that there is no generic difference between a tax and a fee, though broadly a tax is a compulsory exaction as part of a common burden, without promise of any special advantages t .....

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, neither the incidence of the fee nor the service rendered need be uniform. That others besides those paying the fees are also benefited does not detract from the character of the fee. In fact the special benefit or advantage to the payers of the fees may even be secondary as compared with the primary motive of regulation in the public interest. Nor is the Court to assume the role of a cost accountant. It is neither necessary nor expedient to weigh too meticulously the cost of the services rend .....

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be held by the Hon'ble Apex Court as under: "31. The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the, element of revenue for genera .....

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ned by the fact that it must be "by and large" a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered (sic or) expected is one of general character and not of Mathematical exactitude. All that is necessary is that there should be a reasonable "relationship" between levy of the fee, and the services rendered. If authority is needed for this pro position, it is to be found in the several decisions of this Court drawing a di .....

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tate of Kerala & Ors. etc., and Municipal Corporation of Delhi & Ors., v. Mohd. Yasin, 32. There is no generic difference between a tax and a fee. Both are compulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person inspite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor i .....

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hirur Mutt case was not drawn to Art. 266 of the Constitution. The Constitution nowhere contemplates it to be an essential element of fee that it should be credited to a separate fund and not to the consolidated fund. It is also increasingly realized that the element of quid pro quo in the strict sense is not always a sine qua non for a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax: Constitutional Law of India by H.M. Seervai, Vol.2, Second .....

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ehensive level of the value of the totality of the services set off against the totality of the receipts. It has been held in STATE OF H.P & OTHERS VS. SHIVALIK AGRO POLY PRODUCTS & OTHERS reported in (2004) 8 SCC 556 as under: "9. After independence of the country the Governmental functions increased manifold and various legislations were enacted and schemes were introduced for upliftment of the society. Many measures were introduced which contained provisions for imposing compensa .....

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view that there must be actual quid pro quo for a fee has undergone a sea change subsequent to decision in Kewal Krishan Puri vs. State Of Punjab (AIR 1980 SC 1008). Correlationship between the levy and the services rendered/expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable relationship" between the levy of the fee and the services rendered. Moreover, there is no generic difference between a tax and a f .....

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of the service. It is now increasingly realized that merely because the collections for the services rendered or grant of a privilege of licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive. It is also increasingly realized that the element of quid pro quo in the strict sense is not a sine quo non for a fee." 9.1. It is necessary to mention here that the observation made in para 4 .....

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eived by Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled "the Consolidated Fund of India", and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment .....

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entral Processing Centre -CPC for processing of statements of tax deducted at source vide Section 200A, which provision is in para materia with Section 143(1). While processing the return of income under Section 143(1)(a) no personal hearing is provided to an assessee and as such the same is also not provided under Section 200A. Thus, the doctrine of principles of natural justice is given a go by under impugned provision or its violation thereof would not be a ground available to the petitioners .....

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me is filed by an assessee a statutory obligation is cast on the department to process the said return of income within the specified period from the date of filing. If for want of details such return of income not being processed or assessment order not being framed or would be stalled or in other words the return of income filed by an assessee on whose behalf the tax has already been deducted by the deductor is not furnished within the prescribed time by such deductor, it would consequently ha .....

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ands against the deductee which otherwise would not have been raised. In this lengthy and unwarranted process it may erode the confidence reposed by the tax payer on the department. Last but not the least, it would result in financial burden to the Government namely on account of late payment of refund interest is to be paid on such refunds and it would also result in cash flow crunch, especially for business entities. 22. It also requires to be noticed that Division Bench of High Court of Judic .....

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ought to be levied on the deductor. We also do not find the provisions of Section 234E as being onerous on the ground that the Section does not empower the Assessing Officer to condone the delay in late filing of the TDS return/statements, or that no appeal is provided for from an arbitrary order passed under Section 234E. It must be noted that a right of appeal is not a matter of right but is a creature of the statute, and if the Legislature deems it fit not to provide a remedy of appeal, so be .....

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ation of delay also to be wholly without any merit". This Court is in complete agreement with the view expressed by Mumbai High Court and as such contention of the petitioners cannot be accepted for this reason also. 23. This Court in exercise power vested under Article 226 of the Constitution can declare a statute or a provision in the statute as unconstitutional and there cannot be any dispute with regard to this proposition. However, such power would be exercised where it is clear that i .....

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gislature to examine as to whether the impugned legislation in its opinion is wise or unwise. Further the statutes relating to economic activities of the State would be viewed with greater latitude than other laws, inasmuch as the Courts do not possess the economic expertise or has administrative expertise and as such judicial restraint is exhibited particularly when economic legislation is under challenge. These facets have been extensively dealt with by the Hon'ble Supreme Court in the cas .....

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can make under List I to the Seventh Schedule, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, .....

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