TMI Blog2017 (11) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... s 02/2/2016, therefore, this issue raised in all these appeals is restored back to the file of the ld. CIT(A) to be decided on merit and also the issue in ITA No. 664/JP/2017 where notice of demand was served on 02/09/2015 is restored back to the file of the ld. CIT(A) to be decided on merit. - Decided in favour of assessee. - ITA Nos. 660 to 664/JP/2017 - - - Dated:- 18-9-2017 - SHRI BHAGCHAND, ACCOUNTANT MEMBER For The Assessee : WRITTEN SUBMISSIONS For The Revenue : Shri Ajay Mallik (Addl.CIT) ORDER PER: BHAGCHAND, A.M. These are the appeals filed by the assessee emanates from the separate orders of the ld. CIT(A) Ajmer dated 11/05/2017 pertaining to the assessment years 2014-15 and 2015-16. 2. Since, common issues are involved in all the appeals, therefore, all the appeals are being heard together and for the sake of convenience and brevity, common order is being passed. 3. In all these appeals, the issue involved is not admitting the appeals filed by the assessee for the reason that notice of demand was sent to the assessee on 19/06/2014 in ITA No. 660/JP/2017, on 23/06/2014 in ITA No. 661 662/JP/2017, on 12/02/1015 in ITA No. 663/JP/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te electronically and thus rather there was no service/no valid service of notice/communication prior to 02/12/2015) and thus it is requested to delete the demand. 4. After hearing both the sides on this issue, I am of the view that the ld. CIT(A) was not justified in dismissing the appeals for the reason that the assessee did not have sufficient cause for not presenting then appeals within the prescribed time U/s 249(2) of the Act. The Hon'ble Supreme Court in the case of Collector Land Acquisition vs. Mst Katiji Others (1987) 167 ITR 471 (SC) held as under: The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression sufficient cause in section 5 is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose of the existence of the institution of courts. A justifiably liberal approach has to be adopted on principle. Every day's delay must be explained does not imply a pedantic approach. The doctrine mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The provisions of Section 200(3) of the Act put an obligation on a person who has deducted a sum on or after 1st day of April, 2005 to prepare statements as prescribed and deliver or cause to be delivered to the prescribed income tax authority or the person authorized by such authority a statement in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed. Rule 31A of the Income Tax Rules, 1962 (in short the Rules) provided for quarterly statement of deduction of tax as per Sub-Section (3) of Section 200 of the Act wherein every person being a person responsible for deduction of tax under Chapter XVIIB shall, in accordance with the provisions of Sub-Section (3) of Section 200, deliver or cause to deliver or cause to be delivered to the Director General of Income Tax Systems or the person authorized by the Director General of Systems quarterly statements in form No. 24Q and 26Q as the case may be on or before 15th of July, 15th of October and 15th of January in respect of first three quarters of the financial year and 15th June for the last quarter of the financial year. The provisions of levy of fees U/s 234E of the Act for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority a correction statement for rectification of any mistake or to add, delete or update the information furnished in the statement delivered under this sub-section in such form and verified in such manner as may be specified by the authority.] 10. On a perusal of section 200, it is clear that sub-section (3) thereof, and with which we are concerned, inter alia stipulates that any person responsible for deducting any sum by way of tax, on or after 1st April, 2005 in accordance with the foregoing provisions of Chapter XVII or, as the case may be, any person being an employer referred to in subsection (1A) of section 192 shall, after paying the tax so deducted to the credit of the 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 statements, in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed. The proviso (which was inserted w.e.f. 01-10- 2014) further stipulates that a person may also deliver to the prescribed authority a cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) shall not exceed the amount of tax deductible or collectible as the case may be. 13. It is not in dispute that as per the existing provisions, a person responsible for deduction of tax (the deductor) is required to furnish periodical quarterly statements containing the details of deduction of tax made during the quarter, by the prescribed due date. Undoubtedly, delay in furnishing of TDS return/statements has a cascading effect. Under the Income Tax Act, there is an obligation on the Income Tax Department to process the income tax returns within the specified period from the date of filing. The Department cannot accurately process the return on whose behalf tax has been deducted (the deductee) until information of such deductions is furnished by the deductor within the prescribed time. The timely processing of returns is the bedrock of an efficient tax administration system. If the income tax returns, especially having refund claims, are not processed in a timely manner, then (i) a delay occurs in the granting of credit of TDS to the person on whose behalf tax is deducted (the deductee) and consequently leads to delay in issuing refunds to the deductee, or raising of infruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity of imposition of a late fee under section 32(2) of the West Bengal Value Added Tax Act, 2003 came up for consideration. After analysing the provisions of the Bengal Value Added Tax Act, the Calcutta High Court held as under: 10. In case of levying tax there is no quid pro quo between the Tax payer and the State. But element of quid pro quo is a must in case of imposing Fee. By virtue of impugned amendment, a dealer is entitled to get service indirectly from the authority upon payment of late fee. His irregular filing of return is regularised upon payment of late fee without being suffered from penal consequences which can not be categorised as nothing but special service. Thus, there exists quid pro quo in imposing late fee. 11. In this context it is pertinent to mention here that though a fee must be co-related to the services rendered, such relationship need not be mathematical one even casual co-relationship in all that is necessary. The view of the Apex Court in (2005) 2 SCC 345 (referred to by the learned Tribunal at page 14 of the impugned judgment) removed all the doubts on this issue. (Emphasis supplied) 17. It would also be apposite to refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must receive direct or special benefit or advantage of the services rendered for which the fee was being paid. It was held that if one who is liable to pay, receives general benefit from the authority levying the fee, the element of service required for collecting the fee is satisfied. (Emphasis supplied) 18. We are therefore clearly of the view that the fee sought to be levied under section 234E of the Income Tax Act, 1961 is not in the guise of a tax that is sought 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 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 extraordinary equitable jurisdiction under Article 226/227 of the Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament 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, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto v. State of Kerala [(1979) 1 SCC 23 : AIR 1979 SC 83] SCC para 6 : AIR para 6. Also, it is none of the concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as we have already stated above, was a disciple of Thayer) that while he urged tolerance and deference to legislative judgment in broad areas of law-making challenged as unconstitutional, he seemed willing to reverse the presumption of constitutionality when laws inhibiting civil liberties were before the court. 80. However, we find no paradox at all. As regards economic and other regulatory legislation judicial restraint must be observed by the court and greater latitude must be given to the legislature while adjudging the constitutionality of the statute because the court does not consist of economic or administrative experts. It has no expertise in these matters, and in this age of specialisation when policies have to be laid down with great care after consulting the specialists in the field, it will be wholly unwise for the court to encroach into the domain of the executive or legislative (sic legislature) and try to enforce its own views and perceptions.' 22. Therefore even looking at it from the perspective as set out in the aforesaid judgment, we are of the clear view that Section 234E of the Income Tax Act, 1961 does not violate any provision of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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