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M/s PL Oswal & Co. Versus Assessing Officer, TDS, Kalyan And Shri Tirathraj J Singh Versus Assessing Officer, TDS, Kalyan

2017 (5) TMI 913 - ITAT MUMBAI

Levy of fees under section 234E in intimation issued under section 200A(1) - scope of amendment to section 200A(1) - Held that:- Prior to 1.6.2015 late fee u/s 234E cannot be charged while processing quarterly return u/s 200A of the Act. See Asian Pipes & Profiles Pvt. Ltd. Vs. Assessing Officer, TDS [2017 (3) TMI 1482 - ITAT MUMBAI ] - We delete the late fee levied u/s 234E of the Act while passing intimation u/s 200A of the Act for the 4th quarter of the financial year 2012-13 where admitt .....

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.2016 for the assessment year 2013-14 arising out of the Intimation passed u/s 200A of the I.T. Act by the Assessing Officer. Since the issue involved in these appeals is common, these appeals are clubbed, heard together and are being disposed of by this common order for the sake of convenience. 2. The Assessees in both these appeals challenged the orders of the Ld. CIT (Appeals) in confirming levy of late fee u/s 234E of the Act for delay in filing the quarterly TDS statement in the form 26Q. T .....

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o.26Q filed by the Assessees for the 4th quarter of the financial year 2012-13 and while processing Form No.26Q, in the intimation u/s 200A, late fee u/s 234E was levied for the delay in filing Form No.26Q. The Ld. Counsel submits that whether late fee u/s 234E can be levied prior to amendment to section 200A(1)(c) of the Act by Finance Act , 2015 w.e.f. 1.6.2015 while processing the TDS returns is now decided by the Coordinate Bench of the Pune Bench, wherein, it was held that prior to 1.6.2015 .....

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The Ld. DR places reliance on the orders of the authorities below. 5. We have heard the rival submissions, perused the orders of the authorities below and the decision of the Pune Bench. In a batch of appeals, the Coordinate Bench of the Pune Tribunal by order dated 23.9.2016 analysing various case laws on the issue held that, prior to 1.6.2015 late fee u/s 234E cannot be charged while processing quarterly return u/s 200A of the Act observing as under : 28. The perusal of Memo explaining the pr .....

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statements for determining the amount payable or refundable to the deductor, under which the provision was also made for charging of interest. However, since the provisions of section 234E of the Act were not on statute when the Finance (No.2) Act, 2009 was passed, no provision was made for determining the fees payable under section 234E of the Act at the time of processing the TDS statements. So, when section 234E of the Act was introduced, it provided that the person was responsible for furnis .....

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the Act while processing the TDS returns / statements filed by a person did not exist when section 234E of the Act was inserted by the Finance Act, 2012. The power to charge fees under the provisions of section 234E of the Act while processing the TDS statements, was dwelled upon by the Legislature by way of insertion of clause (c) to section 200A(1) of the Act by the Finance Act, 2015 w.e.f. 01.06.2015. Accordingly, we hold that where the Assessing Officer has processed the TDS statements filed .....

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ut was not abreast of the applicability of the said section 234E of the Act by the Assessing Officer while processing TDS statement filed by the deductor prior to 01.06.2015. In such scenario, we find no merit in the plea of learned CIT-DR that the Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) has laid down the proposition that fees under section 234E of the Act is chargeable in the case of present set of appeals. where the Assessing Officer had issued the intim .....

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DS statements I returns were filed belatedly to pay the fees as per said section. However, in cases, where the assessee has failed to deposit the said fees, then in order to enable the Assessing Officer to collect the said fees chargeable under section 234E of the Act, it is incumbent upon the Legislature to provide mechanism for the Assessing Officer to charge and collect such fees. In the absence of enabling provisions, the Assessing Officer while processing the TDS statements, even if the sai .....

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and have held that "of the various rules guiding how a legislation has to be interpreted, one established rule is that unless contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. Idea behind the rule is that current law should govern current activities The Memo explaining the Finance Bill, 2015 very dearly also recognizes that and refers to the current provisions of sub-section (3) to section 200 of the Act, under which the deductor is .....

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tements under section 200A of the Act. In other words, the Assessing Officer is empowered to charge fees payable under section 234E of the Act in the intimation issued after insertion of clause (c) to section 200A(1) of the Act w.e.f. 01.06.2015. The Legislature itself recognized that under the existing provisions of section 200A of the Act i.e. prior to 01.06.2015, the Assessing Officer at the time of processing the TDS statements did not have power to charge fees under section 234E of the Act .....

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ng Officer to process the TDS statements filed by the assessee. The insertion categorically being made w.e.f. 01.06.2015 lays down that the said amendment is prospective in nature and cannot be applied to processing of TDS returns I statements prior to 01.06.2015. 32. We further find that in recent judgment dated 26.08.2016, the Hon'ble Karnataka High Court in Writ Appeal Nos. 2663-2674/2015(T- IT) & Ors in Sri Fatheraj Singhvi & Ors Vs. Union of India & Ors has quashed the intim .....

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1.06.2015 under section 200A of the Act levying section 234E of the Act late fees is not valid". However, the Hon'ble High Court kept open the issue on constitutional validity of section 234E of the Act. We have already referred to the decision of Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) in this regard, wherein the constitutional validity of section 234E of the Act has been upheld. 33. Accordingly, we hold that the amendment to section 200A(1) of t .....

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