TMI Blog2023 (8) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of section 154 cannot be invoked for debatable issue. In this case, levy of late fee under section 234E is a debatable issue as discussed in earlier para. It is not a clear cut mistake apparent from record. Therefore, the order under section 200A cannot be rectified under section 154 of the Act. - Shri Pavan Kumar Gadale, Judicial Member And Dr. Dipak P. Ripote, Accountant Member For the Assessee : None For the Revenue : Ms. Prerana Choudhary-JCIT-DR ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the assessee against the order of ld. Commissioner of Income Tax (Appeals) (National Faceless Appeal Centre, Delhi) under section 250 of Income Tax Act, 1961 for A.Y. 2013-14 emanating from order under section 154 of the Income Tax Act dated 31.12.2019 passed by Income Tax Officer (TDS), Udaipur. 2. The assessee has filed an application under section 154 of the Act against the order under section 200A. Assessee requested the ITO to rectify the levy of fee charged under section 234E of the Act. The ld. ITO rejected the application on the ground that it is not a mistake apparent from record as it is a debatable issue. The relevant paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No Response 3. 26.11.2021 13.12.2021 No Response 4. 07.01.2022 28.01.2022 No Response 5. 23.02.2022 09.03.2022 No Response 6.1 Thus, ld. CIT(A) had issued five notices and assessee failed to submit reply to the ld. CIT(A). Therefore, we are of the opinion that sufficient opportunity had been given by the ld. CIT(A) to the assessee hence, Ground No. 1 of the assessee is dismissed. Ground No. 2 7. In this case, assessee has filed an appeal against the order under section 154. Assessee had filed an application under section 154 before the ITO to rectify the order under section 200A levying late fee under section 234E of the Act. The ITO rejected the rectification application on the ground that it is a debatable issue. We agree with the ITO that it is a debatable issue. Rectification application is for correcting the mistakes apparent from records. One cannot take recourse under section 154 in the case of issues which are debatable issues. 8. The Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re unable to see that section 200A of the Act creates any charge in any manner. It only provides a mechanism for processing a statement for tax deduction and the method in which the same would be done. When section 234E has already created a charge for levying fee that would thereafter not been necessary to have yet another provision creating the same charge. Viewing section 200A as creating a new charge would bring about a dichotomy. In plain terms, the provision in our understanding is a machinery provision and at best provides for a mechanism for processing and computing besides other, fee payable under section 234E for late filing of the statements. 20. Even in absence of section 200A of the Act with introduction of section 234E, it was always open for the Revenue to demand and collect the fee for late filing of the statements. Section 200A would merely regulate the manner in which the computation of such fee would be made and demand raised. In other words, we cannot subscribe to the view that without a regulatory provision being found for section 200A for computation of fee, the fee prescribed under section 234E cannot be levied. Any such view would amount to a charging s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was of charging capital gain on transfer of a capital asset. In case on hand, the asset was in the nature of goodwill. The Supreme Court referring to various provisions concerning charging and computing capital gain observed that none of these provisions suggest that they include an asset in the acquisition of which no cost can be conceived. In such a case, the asset is sold and the consideration is brought to tax, what is charged is a capital value of the asset and not any profit or gain. This decision therefore would not apply in the present case. 22. In the result, petition fails and is dismissed. Thus the Hon'ble Gujarat High Court has dismissed the appeal of the assessee deciding in favour of the Revenue. The Hon'ble Gujarat High Court has also stated that they do not concur with the view expressed by Hon'ble Karnataka High Court in the case of Fatehraj Singhvi vs. Union of India. Whereas Hon'ble Karnataka High Court in the case of Fatehraj Singhvi vs. Union of India 73 taxman.com 252 (Karnataka) has held that section 234E cannot be levied for the period prior to 1.06.2015. 9. Thus, the two Hon ble High Courts have expressed the different view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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