TMI Blog2022 (3) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2013-14 and 2014- 15. All these appeals were bunched together, heard together and hence they are being disposed of by this common order for the sake of convenience. 2. There is a delay in filing these appeals before the Tribunal and the assessee has filed condonation petition in this regard. The order of the CIT(A) was received on 13/08/2021 and the assessee filed the appeal before the Tribunal on 05/01/2022 whereby there is a delay by 84 days in filing the appeal before the Tribunal. We have considered this matter and have taken the materials on record to admit the petition filed for condonation of delay. The Hon ble Supreme Court suo moto writ petition No.03/2020 along with M.P 21/2022 has held that the period from 15/3/2020 till 28/02/2022 shall stand excluded for the purpose of period of limitation as may be prescribed under any general or special laws in respect of quasi judicial and judicial proceedings. The period of delay (from 12/10/2021 to 05/01/2022) in assessee s case is covered by the exclusion of period of limitation as per the order of the Hon ble Supreme Court. Hence we hold that there is no delay to be condoned in filing these appeals and the appeals are dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Aggrieved by the order of the CIT(A), the assessee is in appeal before the Tribunal. 6. The ld.AR submitted that the lower authorities have ignored the fact that prior to 1st June, 2015, there was no enabling provision for payment and levy of fee u/s 234E of the Act. The ld.AR also submitted that Sec.200A which on the relevant point of time permitted computation of amount recoverable from or payable to the tax deductor after making the following adjustments :- 1) Adjustment on account of arithmetic error or for correct claims apparent from information in the statement 2) Adjustment of sums taxable as computed in the statement. The ld.AR further submitted that no other adjustment in the amount refundable to or recoverable from the tax deducted were permissible to in accordance with the law as it existed prior to 1st June, 2015 thereby the enabling provision for levy of fees u/s 234E cannot be used without the machinery provision (sec. 200A). 8. The ld.DR supported the decisions of the lower authorities. 9. We have heard rival submissions and perused the materials on record. We noticed that the Hon ble Karnataka High Court in the case of Shri Fatheraj Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceability of requirement to file return under Section 200(3) and Section 206C(3) was by virtue of Section 272A(2)(k) of the Act which provided for the penalty of ₹ 100/ - per day for each day of default in filing TDS statements. But, when Section 234E was inserted with effect from 17.2012 simultaneously, a second proviso was added under Section 272A(2) with effect from 1.7.20 12 as under: Penalty for failure to answer questions, sign statements, furnish information, returns or statements, allow inspections, etc. 272A. (1) xxxx (2) If any person fails- (a) to comply with a notice issued under sub-section (6) of section 94; or (b) to give the notice of discontinuance of his business or profession as required by sub-section (3) of section 176; or (c) to furnish in due time any of the returns, statements or particulars mentioned in section 133 or section 206 or section 206C or section 28513; or (d) to allow inspection of any register referred to in section 134 or of any entry in such register or to allow copies of such register or of any entry therein to be taken; or (e) to furnish the return of income which he is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanism provided for enforceability of Section 200(3) or 206C (3) for filing of the statement by making it penal under Section 272A (2) (k) is done away in view of the insertion of Section 271H providing for penal provision for such failure to submit return. When the Parliament has simultaneously brought about Section 234E, Section 271H and the aforesaid proviso to Section 272A(2), it can be said that, the fee provided under Section 234E is contemplated to give a privilege to the defaulter to come out from the rigors of penalty provision under Section 271H (1) (a) if he pays the fee within one year and complies with the requirement of sub-section (3) of Section 271H. 20. In view of the aforesaid observations and discussion, two aspects may transpire one, for Section 234E providing for fee and given privilege to the defaulter if he pays the fee and hence, when a privilege is given for a particular purpose which in the present case is to come out from rigors of penal provision of Section 271H(1)(a), it cannot be said that the provisions of fee since creates a counter benefit or reciprocal benefit in favour of the defaulter in the rigors of the penal provision, the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as having prospective effect and not retrospective effect. Under the circumstances, we find that substitution made by clause (c) to (1) of sub-section (1) of Section 200A can be read as having prospective effect and not having retroactive character of effect. Resultantly, the demand under Section 200A for computation and intimation for the payment of fee under Section 234E could not be made in purported exercise of power under Section 200A by the respondent for the period of the respective assessment year prior 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. 23. In view of the aforesaid observation and discussion, since the impugned intimation given by the respondent- Department against all the appellants under Section 200A are so far as they are for the period prior to 1.6.2015 can be said as without any authority under law. Hence, the same can he said as illegal and invalid. 24. If the facts of the present cases are examined in light of the aforesaid observation and d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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