TMI Blog2019 (6) TMI 1575X X X X Extracts X X X X X X X X Extracts X X X X ..... And Shri O.P. Kant, Accountant Member Appellant by: None Respondent by: Shri P.V. Gupta, Sr.DR ORDER O.P. Kant, A.M.: This appeal by the assessee is directed against order dated 23/01/2018 passed by the Ld. Commissioner of Income Tax (Appeals) [in short 'the Ld. CIT(A)'] in relation to order for levy of fee for late filing of Quarterly Return for deduction of tax at source (TDS) for assessment year 2015-16. The grounds raised in the appeal are reproduced as under: 1. That the Ld. Commissioner of Income Tax (Appeals) has erred both in law and on facts in not allowing relief of ₹ 40,600/- which was charged by the Ld. Assessing officer for late filing fee u/s 234E of Income Tax Act, 1961. 2. That on the facts and circumstances of the case the Ld. Commissioner of Income Tax (Appeals) has erred in not allowing relief as rectification order u/s 154/200A of Income Tax cannot be passed without giving opportunity to the assessee. The A.O. passed rectification order u/s 154/200A of Income Tax without giving opportunity to the assessee. ITA No.2039/Del/2018 3. That the appellant humbly prays that ₹ 40,600/- which was charged by the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified by the registered post for the date of hearing dated 06/06/2019. As per the record, notice has not returned back and thus, we can safely presume that the notice was duly served upon the assessee. Despite notifying, none attended on behalf the assessee, nor any application for adjournment was filed, accordingly, we were of the opinion that assessee was not interested in pursuing the appeal and thus, we proceeded to hear the appeal ex-parte, qua the assessee. 4. The Ld. DR, on the other hand, relied on the order of the lower authorities. 5. We have heard the rival submission and perused the relevant material on record. We find that the issue raised in the appeal is whether the Ld. CIT(A) was justified in confirming the levy of late fee under section 234E of the Act in the statement of tax deducted at source filed in form No.26QB and processed under section 200A of the Act. We also note that an amendment has been brought in the Finance Act, 2015, w.e.f., 01/06/2015, ITA No.2039/Del/2018 which paved the way for levying the fee under section 234E of the Act in the statement processed under section 200A of the Act. The learned CIT(A) following the decision of Hon'ble Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Gujarat Hon'ble High Court in the case of Shri Rajesh Kaurani (supra). The Tribunal held that where there is difference of opinion in two decisions of the High Courts, in view of the decisions of the Hon'ble Supreme Court in the case of CIT Vs. Vatika Township Private Limited (2014) 367 ITR 466(SC) and CIT Vs. Vegetable Products Ltd. (1973) 88 ITR 192 (SC), the decision favourable to the assessee should be followed. The Coordinate Bench of Agra in the case of Sudarshan Goyal vs. DCIT (TDS) (ITA No. 442/Agra/2017 order dated 09/04/2018) has adjudicated this issue as under: The issue involved in this appeal is as to whether late filing fee u/s 234E of the IT Act has rightly been charged in the intimation dated 10.11.2013 issued u/s 200A of the Act while processing the TDS returns/statement, the enabling clause (c) having been inserted in the section w.e.f. 01.06.2015. Before 01.06.2015, there was no enabling provision in the Act u/s 200A for raising demand in respect of levy of fee u/ s 234E. As such, as per ITA No.2039/Del/2018 the assessee, in respect of TDS statement filed for a period prior to 01.06.2015, no late fee could be levied in the intimation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y deductor has already paid the fee after intimation received under Section 200A, ITA No.2039/Del/2018 the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest. 6. In view of the above, respectfully following 'Shri Fatehraj Singhvi and Others' (supra), 'Sibia Healthcare Pvt. Ltd. vs. DCIT (TDS)', order dated 09.06.2015 passed in ITA No.90/ASR/2015, for A.Y.2013-14, by the Amritsar Bench of the Tribunal, and 'Shri Kaur Chand Jain vs. DCIT, CPC (TDS) Ghaziabad', order dated 15.09.2016, in ITA No.378/ASR/2015, for A.Y. 2012-13, the grievance of the assessee is accepted as justified. The order under appeal is reversed. The levy of the fee is cancelled. 7. Similarly, the Coordinate Bench of Jaipur in the case of M/s Mentor India Ltd Vs DCIT (ITA No. 738/JP/2016 order dated 16/12/2016) has taken a view favourable to the assessee observing as under: 6. Now the assessee is in appeal before us. In ITA No. 438/JP/2016, the only effective ground is against confirmation of late filing fee of ₹ 48,402/'; charged by the A.O. U/s 234E of the Act. In this regard, the Ld. AR of the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trospectively and held that unless contrary intention appears, a legislation is presumed not to have a retrospective operation. Respectfully following the above judgments of Hon'ble Supreme Court and Hon'ble Karnataka High Court, we set aside the order of Id. CIT (A) and direct the AO to drop the demand raised of ₹ 4,200/- u/s 234E on statements processed u/s 200A before 01.06.2015. Thus grounds raised by the assessee are allowed. The Hon'ble Jurisdictional High Court in the case of Dundlod Shikshan Sansthan Vs. Union of India (supra) has decided the issue of vires of Section 234E of the Act. The Hon'ble Karnataka High Court in the case of Fatheraj Singhvi ors. Vs Union of India Ors. (supra) has held that the demand U/s 200A for computation and intimation for the payment of fee U/s 234E could not be made in purported exercise of power U/s 200A for the period of the respective assessment years prior to 1st June, 2015. When the intimation of the demand notices U/s 200A is held to be without authority of law so far as it relates to computation and demand of fee U/s 234E, the question of further scrutiny for testing the constitutional validity of Section 234E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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