TMI Blog2022 (6) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... es u/s 234E of the Act can be levied only prospectively w.e.f. 01.06.2015 - Decided in favour of assessee. - ITA No. 1201 to 1206/PUN/2019 And 1271 to 1278/PUN/2019 And 1297 to 1299/PUN/2019 - - - Dated:- 31-5-2022 - Shri Inturi Rama Rao, Accountant Member And Shri S. S. Viswanethra Ravi, Judicial Member For the Assessee : Smt. Deepa Khare, Shri Abhay Avchat For the Revenue : Shri Arvind Desai ORDER PER BENCH : These are the seventeen appeals filed by the assessee against the respective orders of ld. Commissioner of Income Tax (Appeals) for the respective assessment years on record. 2. Since the identical facts and common issues are involved in all the above captioned eighteen appeals, we proceed to dispose of the same by this common order. 3. For the sake of convenience and clarity, the facts relevant to the appeal in ITA No.1201/PUN/2019 for the assessment year 2013-14 are stated herein. 4. The appellant raised the following grounds of appeal :- 1. The learned CIT(A) erred in law and on facts in not condoning the delay in filing of appeal without appreciating that there was a sufficient and genuine reason for the delay. 2. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . DCIT, 73 taxmann.com 380 and (ii) Maharashtra Cricket Association, Pune vs. DCIT, 74 taxmann.com 6. Admittedly, in the present case the late fees u/s 234E was levied for the period prior 1.6.2015 and applying ratio of the decisions referred supra, the late fee cannot be levied. Keeping in view the fact, that the appellant is not liable for payment of late fee u/s 234E, we considered the merits in the petition for condonation of delay before the ld. CIT(A). The Hon ble Supreme Court in the case of Collector of Land Acquisition vs. Mst. Katiji, 167 ITR 471 (SC) had laid as follows :- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. Every day s delay must be explained does not mean that a pedantic approach should be made. Why not every hour s delay, every second s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st show utmost consideration to the suitor. It also observed that if the delay is deliberate, then the Court should not accept the explanation. It held that while condoning the delay, the Court should compensate the opposite party with costs. 12. Applying the principles enunciated in the decisions referred to hereinabove, the facts of the present case, it is clear that the appellant has strong case on merits of case. Therefore, the ld. CIT(A) ought to have condoned the delay and adjudicate the appeal on merits. However, since the issue involved is purely legal, we decide the issue on merits as follows. 13. We heard the rival submissions and perused the material on record. The only issue in the present appeal relates to the levy of late fees u/s 234E of the Act. The CPC (TDS) had levied penalty u/s 234E of the Act for belated submission of tax deducted at source statement during the financial year 2012-13. It is only w.e.f. 01.06.2015 an amendment was made u/s 200A of the Act providing that fee u/s 234E could be computed at the time of processing of the return of income and intimation could be issued specifying the same payable by the dedutor as fee u/s 234E of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h provision provides for a mere regulatory mechanism or confers substantive power upon the authority would also be a aspect which may be required to be considered before such provisions is held to be retroactive in nature. Further, when any provision is inserted for liability to pay any tax or the fee by way of compensatory in nature or fee independently simultaneously mode and the manner of its enforceability is also required to be considered and examined. Not only that, but, if the mode and the manner is not expressly prescribed, the provisions may also be vulnerable. All such aspects will be required to be considered before one considers regulatory mechanism or provision for regulating the mode and the manner of recovery and its enforceability as retroactive. If at the time when the fee was provided under Section 234E, the Parliament also provided for its utility for giving privilege under Section 271H(3) that too by expressly put bar for penalty under Section 272A by insertion of proviso to Section 272A(2), it can be said that a particular set up for imposition and the payment of fee under Section 234E was provided but, it did not provide for making of demand of such fee under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the fee under Section 234E could be made for the TDS deducted for the respective assessment year prior to 1.6.2015. Hence, the demand notices under Section 200A by the respondent-authority for intimation for payment of fee under Section 234E can be said as without any authority of law and the same are quashed and set aside to that extent. 25. As such, as recorded earlier, it is on account of the intimation received under Section 200A for making computation and demand of fees under Section 234E, the same has necessitated the appellant to challenge the constitutional validity of Section 234E. When the intimation of the demand notices under Section 200A is held to be without authority of law so far as it relates to computation and demand of fee under Section 234E, we find that the question of further scrutiny for testing the constitutional validity of Section 234E would be rendered as an academic exercise because there would not be any cause on the part of the petitioners to continue to maintain the challenge to constitutional validity under Section 234E of the Act. At this stage, we may also record that the learned counsels appearing for the appellant had also declared that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not gone into the issue of retrospective operation of provisions of section 234E of the Act. In the circumstances, we direct the ACIT, CPC-TDS, Ghaziabad to delete the late fee being levied u/s 234E of the Act. 15. In the result, the appeal filed by the assessee in ITA No.1201/PUN/2019 for A.Y. 2014-15 stands allowed. ITA Nos.1202 to 1206/PUN/2019, ITA Nos.1271 to 1278/PUN/2019, ITA No.1297 to 1299/PUN/2019: A. Ys. : 2013-14, 2014-15, 2015-16: 16. Since the facts and issues involved in all the above seventeen appeals are identical, therefore, our decision in ITA No.1201/PUN/2019 for the assessment year 2013-14 shall apply mutatis mutandis to the remaining sixteen appeals of the assessee in ITA Nos.1202 to 1206/PUN/2019, ITA Nos.1271 to 1278/PUN/2019 and ITA No.1297 to 1299/PUN/2019 for A.Y. 2013-14, 2014-15 and 2015-16 respectively. Accordingly, the appeals of the assessee in ITA Nos.1202 to 1206/PUN/2019, ITA Nos.1271 to 1278/PUN/2019 and ITA No.1297 to 1299/PUN/2019 are allowed. 17. To sum up, all the above seventeen appeals filed by the assessee stand allowed. Order pronounced on this 31st day of May, 2022. - - TaxTMI - TMITax - I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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