TMI Blog2019 (3) TMI 1807X X X X Extracts X X X X X X X X Extracts X X X X ..... d:- 8-3-2019 - SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SANJAY GARG, JUDICIAL MEMBER For the Assessee : Shri. Tejmohan Singh, Advocate For the Department : Smt. Meenakshi Vohra, Sr. DR ORDER PER N.K. SAINI : These three appeals by the assessee are directed against the consolidated order of the Ld. CIT(A), Panchkula dt. 29/12/2017. 2. Since the issues involved are common and the appeals were heard together so these are being disposed off by this common order for the sake of convenience and brevity. 3. The only grievance of the assessee in these appeals relates to the levy of late fee by invoking the provisions of Section 234E of the Income Tax Act, 1961 (hereinafter referred to as Act ), in intimation passed under section 200A of the Act. 4. Facts of the case in brief are that the assessee had applied for and was allotted an Industrial Land by Haryana State Industries Infrastructure Development Coporation(HSIIDC) in Industrial Estate, Manakpur, Jagadhari. The assessee paid a sum of ₹ 32,40,000/- on 05/09/2013 to HSIIDC after the allotment of the land. According to the Assessing Officer the assessee was required to deduct TDS @ 1% from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (3) of section 200 of the Act. So, section 234E is not punitive in nature but a fixed charge by way of fee is levied for late filing of TDS statements. Therefore, on combined reading of section 200A and 234E, it is apparent that the levy of fee for late filing of TDS statements is mandatory. 7.2 Further, charging of fee u/s 234E for delay in filing TDS statements is a mandatory levy of fee provided in the statute whose constitutional validity has been upheld by Hon'ble High Court of Bombay in the case of Rashmi Kant Kundalia Vs. UOI 373 ITR 268 (Bom.). The appellant has not disputed the fact that the statementhas been filed late nor contested the period of delay. The issue of levy of fee u/s 234E of the Act has been discussed in detail by the Hon'ble Gujarat High Court in the case of Rajesh Kourani Vs Union of India [2017] 83 taxmann.com 137 (Gujarat). In the above decision it was held that the fee u/s 234E can be levied even if the processing of TDS statement u/s 200A was prior to the amendment made to Section 200A w.e.f. 01.06.2015, since the amendment is only of clarificatory nature. 7. Now the assessee is in appeal. 8. Ld. Counsel for the assessee reiterated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.). In the aforesaid case it was observed by the Tribunal that levy of fees under Sec.234E while processing the TDS returns under Sec.200A prior to 01.06.2016 was without any authority of law. On the basis of its aforesaid observations, the Tribunal had concluded that the fees levied under Sec.234E prior to 01.06.2015 in the intimations made under Sec. 200A was without authority of law, and as such the fees therein levied was liable to be deleted. Apart therefrom, we find that the issue involved in the appeal before us is also covered by an order of the ITAT, Amritsar in the case of Tata Rice Mills Vs. ACIT (CPC), TDS Ghaziabad (ITA No. 395/ASR/2016; dated 25.10.2017. In the aforementioned case, it was observed by the Tribunal that the assessee had filed its statement of tax deduction at source for the second quarter relevant to Financial year 2014- 15 on 19th June, 2015, which was thereafter processed on 23.06.2015 by the ACITTDS, CPC and a late fee under Sec. 234E of ₹ 49,400/- was charged in the intimation issued under Sec. 200A of the I.T. Act. It was observed by the Tribunal that as the amendment made under Sec.200A was effective from 01.06.2015 and applicable prospec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been clarified and held by Hon'ble Karnataka High Court in the case of Fatheraj Singhvi v. Union of India [2016] 73 taxmann.com 252. wherein the lordship had made following observations:- 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(l)(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 assessment year of the earlier period and the return filed for the said respective assessment years namely all assessment years and the returns prior to 1.6.2015. It was submitted that, when no express authority was conferred by the statute under Section 200A prior to 1.6.2015 for computation of any fee under Section 234E nor the determination thereof, the demand or the intimation for the previous period or previous year prior to 1.6.2015 could not have been made. Thus, we hold that no fee was leviable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dya Vardhani Education Research Foundation v. Dy. CIT [2017] 88 taxmann.com 894 (Pune - Trib.) and also in Swami Vivekanand Vidyalaya {supra) and Medical Superintendant Rural Hospital v. ACIT [IT Appeal Nos.2072 2073 (PUN) of 2017, order dated 21-12-2017], which has been relied upon by the learned Authorized Representative for the assessee. 13. The Hon'ble High Court of Karnataka in the case of Fatheraj Singhvi {supra) had also laid down similar proposition that the amendment to section 200A of the Act w.e.f. 01.06.2015 has prospective effect and is not applicable for the period of respective assessment years prior to 01.06.2015. The relevant findings of the Hon'ble High Court are in paras 21 and 22, which read as under:- 21. However, 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 author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 1.6.2015. However, we make it clear that, if any deductor has already paid the fee after intimation received under Section 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest. 14. The Hon'ble High Court thus held that where the impugned notices given by Revenue Department under section 200A of the Act were for the period prior to 01.06.2015, then same were illegal and invalid. Vide para 27, it was further held that the impugned notices under section 200A of the Act were for computation and intimation for payment of fees under section 234E of the Act as they relate for the period of tax deducted at source prior to 01.06.2015 were being set aside. 15. In other words, the Hon'ble High Court of Karnataka explained the position of charging of late filing fees under section 234E of the Act and the mechanism provided for computation of fees and failure for payment of fees under section 200A of the Act which was brought on Statute w.e.f. 01.06.2015. The said amendment was held to be prospective in nature and hence, notices issued under section 200A of the Act for computation and intimation for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
