TMI Blog2022 (11) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... g the statement beyond the stipulated time is not sustainable in law. Respectfully following the ratio laid down in case of Fatheraj Singhvi [ 2016 (9) TMI 964 - KARNATAKA HIGH COURT] ; judgment of United Metals [ 2021 (12) TMI 1349 - KERALA HIGH COURT] and various decisions of the Tribunal levying of late fee under section 234E for the period prior to 1/6/2015 is not sustainable in law. Thus, in the instant case since the period of default was before the said date ie., 01/06/2015, there is no merit in charging late filing fee u/s. 234E of the Act. Accordingly the Ld. AO is directed to delete the fee levied U/s. 234E of the Act in the order passed U/s. 154 r.w.s 200A of the Act. Since hold that the no late filing fee is to be charged, the consequential interest charged U/s. 220(2) of the also does not survive - Decided in favour of assessee. - I.T.A. Nos.164 to 178/Viz/2021 & 20/Viz/2022 - - - Dated:- 16-11-2022 - Shri Duvvuru Rl Reddy And Hon ble Judicial Member For the Appellant : Sri C. Subrahmanyam, CA For the Respondent : Sri ON Hari Prasada Rao, Sr. AR ORDER PER SHRI DUVVURU RL REDDY, JUDICIAL MEMBER : All the captioned appeals (I.T.A. Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its TDS statement for the 4th Quarter of FY 2013-14 in Form No. 26Q on 02/08/2014 whereas the due date for filing the TDS returns is 15th May, 2014. The Ld. AO treating this filing / furnishing of TDS statement as a default since it is not filed within the stipulated time as per the TDS provisions and accordinlgy imposed late fees u/s. 234E amounting to Rs. 15,800/- and Rs. 10,586/- being interest charged on late filing and passed U/s. 200A/154 of the Act dated 19/03/2020. Aggrieved by the order of the Ld. AO, the assessee filed an appeal before the Ld. CIT (A), NFAC, Delhi. 4. On appeal, the Ld. CIT(A) observed that the provisions of section 234E of the Act were introduced by Finance Act, 2012 w.e.f 1/7/2012. The Ld. CIT (A) observed that the Memorandum explaining the provisions of Finance Bill, 2012 (Part E4 Rationalization of Tax Deduction at Source (TDS) and Tax) makes it clear that the Fee charged u/s 234E is not in the nature of penalty and is a fee which the deductor shall be liable to pay in the event of delay in filing the TDS statements as prescribed. The Ld. CIT(A) further noted that w.e.f 1/7/2012 ie., from the date of introduction of late fee U/s. 234E the existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s view the Ld. AR relied on the judgment of the Hon ble Karnataka High Court in the case of Fatheraj Singhvi vs. Union of India [2016] 73 taxmann.com 252 (Karnataka); judgment of the Hon ble Kerala High Court in the case of United Metals vs. ITO (TDS) reported in [2022] 137 taxmann.com 115 (Kerala); decision of the Pune Bench of the Tribunal in the case of Medical Superintendent Rural Hospital, Nashik vs. DCIT, CPC (TDS), Ghaziabad in ITA Nos. 651 to 661/Pun/2018, dated 25/10/2018. The Ld. AR further submitted that since the Ld.CIT(A) relied only the judgments of the Hon ble Bombay High Court in the case of Rashmikat Kundalia (supra) as well as the judgment of the Hon ble Gujarat High Court in the case of Rajesh Kourani vs. Union of India (supra) and ignored the ratio laid down by the Hon ble Karnataka High Court in the case of Fatheraj Singhvi (supra); judgment of the Kerala High Court in the case of United Metals (supra) and decisions of various Benches of the Tribunal which is against the spirit and the ratio laid down by the Hon ble Supreme Court in the case of CIT vs. M/s. Vegbetable Products Ltd (1973) 88 ITR 192 (SC) wherein it was held that when there is difference of opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 01/06/2015, if filed after 01/06/2015 and processed after 01/06/2015 whether they attract the amended provisions of Finance Act, 2012 and the specific provision for levy of fee under section 234E of the Act which was inserted w.e.f 1/6/2015. In the present case the assessee filed its TDS statement for the 4th Quarter of FY 2013- 14 in Form No. 26Q on 02/08/2014 whereas the due date for filing the TDS returns is 15/05/2014. The Ld. AO treating this filing / furnishing of TDS statement as a default since it is not filed within the stipulated time as per the TDS provisions and imposed late fees u/s. 234E amounting to Rs. 15,800/- and Rs. 10,586/- being interest charged on late filing and passed order U/s. 200A/154 of the Act dated 19/03/2020. On appeal, the Ld. CIT(A) confirmed the action of the Ld. AO and dismissed the assessee s appeal by relying on the judgment of Hon ble Bombay High Court in the case of Rashmikat Kundalia vs. Union of India (2015) 373 ITR 268 (Bombay) and also the judgment of the Hon ble Gujarat High Court in the case of Rajesh Kourani vs. Union of India (2017) 83 taxmann.com 137 (Gujarat). 8. In the present case, since the due date for filing the TD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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 Section 200A payable under Section 234E. Hence, considering the aforesaid peculiar facts and circumstances, we are unable to accept the contention of the learned counsel for respondent-Revenue that insertion of clause (c) to (f) under Section 200A(1) should be treated as retroactive in character and not prospective. 22. It is hardly required to be stated that, as per the well established principles of interpretation of statute, unless it is expressl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is the 4th Quarter of FY 2013-14 ie., prior to the amendment to section 200A(1) of the Act wherein clause (c) was inserted w.e.f 01/06/2015 and the assessee had already deposited the tax at source prior to the amendment to section 200A(1), the levy of late fee u/s. 234E for default in furnishing the statement beyond the stipulated time is not sustainable in law. Further, respectfully following the ratio laid down in the judgment deliverd by the Hon ble Karnataka High Court in the case of Fatheraj Singhvi (supra); judgment of the Kerala High Court in the case of United Metals (supra) and various decisions of the Tribunal (supra), I am of the view that the levying of late fee under section 234E for the period prior to 1/6/2015 is not sustainable in law. 13. Thus, in the instant case since the period of default was before the said date ie., 01/06/2015, there is no merit in charging late filing fee U/s. 234E of the Act. Accordingly the Ld. AO is directed to delete the fee levied U/s. 234E of the Act in the order passed U/s. 154 r.w.s 200A of the Act. Since I hold that the no late filing fee is to be charged, the consequential interest charged U/s. 220(2) of the also does not su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A), NFAC, in ITA No. CIT(A)/Visakhapatnam-2/10360/2019-20, dated 23/08/2021 confirming the order passed U/s. 154 r.w.s 200A of the IT Act dated 19/03/2020 is against the facts of the case and provisions of law. 2. The Ld. CIT (A) erred in confirming the levy of late fee U/s. 234E of the Act while processing the TDS return U/s. 200A of the IT Act for the quarter April to June, 2015 since wef 1/6/2015 section 200A(1) was amended to include clause (c) for levy of fees. Therefore the levy of fees is without authority of law so held by the judiciary in several cases. 3. The Ld.CIT(A) while confirming the levy of late fee relied on the decisions rendered by Hon ble High Court of Gujarat and Bombay but ignored the decision of Hon ble Karnataka High Court and other coordinate benches of the Tribunal. This action of the Ld. CIT(A) runs counter to the decision of the Hon ble Apex court in the case of CIT vs. Vegetable Products Ltd [1973] 88 ITR 192. 4. For these and such other grounds, that may be adduced at the time of hearing of subject appeal, the appellant prays before the Hon ble Tribunal that the order passed by CIT(A) U/s. 250 of the Act dated 23/08/2021 be qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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