Case Law Details
Shri Bhaskar Roy Vs ITO (TDS) (ITAT Kolkata)
ITAT held that demand raised by the Income Tax Authorities for levying late fee u/s. 234E of the Act for the period prior to 01.06.2015 cannot be sustained and we order accordingly. However, we hasten to add that Hon’ble Karnataka High Court while passing the order had held the order to be prospective in operation and had clarified that if an assessee had made payment of fees u/s. 234E as per the demand/intimation u/s. 200A of the Act for the period prior to 01.06.2015 then it cannot claim the refund since the Hon’ble Karnataka High Court has held its order to be prospective in operation.
FULL TEXT OF THE ORDER OF ITAT KOLKATA
All these appeals are preferred by the individual assessee which are against the orders of Ld. Commissioner of Income Tax (Appeals) National Faceless Appeal Centre (NFAC), Delhi (Ld. CIT(A) for AY 2013-14 (for ITA No. 415/Kol/2021) dated 23.08.2021, AY 2014-15 (for ITA Nos. 416 to 420/Kol/2021) dated 18.08.2021, 19.08.2021 & 23.08.2021) and AY 2015-16 (for ITA No. 421 & 422/Kol/2021) dated 19.08.2021 & 23.08.2021). According to Ld. AR, Shri K. M. Roy, the impugned action of Ld. CIT(A) is without appreciating the fact that the Assessing Officer, TDS (AO) has levied the late fees in respect of deduction of TDS without any authority of law; and, therefore, assessee pleads that the late fee levied by the AO to be deleted. Since the sole issue is regarding the imposition of late fee u/s. 234E of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) prior to 01.06.2015 and is the only issue in all these appeals, ITA No. 415/Kol/2021 is taken as the lead case and the decision of the same will be followed in all other appeals.
2. The brief facts of the case as noted by the Ld. CIT(A) is that the assessee was required to file a statement of tax deduction at source u/s. 200 of the Act in Form No. 24Q. The late filing fee u/s. 234E of the Act, according to Ld. CIT(A) is applicable for delay in filing of such statement within the prescribed date. According to Ld. CIT(A) section 234E of the Act prescribes a fine of Rs.200/- for every day from date of default and it continues. According to Ld. CIT(A), a default summary which consists of various defaults identified while processing the statement filed by a deductor, u/s. 200A of the Act during a particular quarter of a financial year provides detailed information about the defaults that needs to be rectified by the deductor by filing correction statement by payment of the necessary interest/fees/other dues. According to Ld. CIT(A), such a default summary for Q1 of FY 2012-13 for Form 24Q in the case of assessee was passed on 03.09.2014, vide which the assessee was intimated that an amount of Rs. 15,400/- was computed in accordance with the provisions of section 234E of the Act. Thereafter, the Ld. CIT(A) notes that the AO, ITO, Ward-1(2), TDS, Kolkata had issued a letter to the appellant/assessee on 03.10.2016 regarding payment of outstanding demand against which the assessee preferred an appeal with the grounds of appeal before the Ld. CIT(A) and thereafter he noted that main ground raised by the assessee was that the demand raised before 01.06.015 is unsustainable based on the judgment of the Tribunal, Delhi Bench in the case of M/s. Prakash Industries Ltd. Vs. DCIT dated 29.07.2019 (ITA Nos. 5865/Del/2016 & Ors. for AYs. 2013-14 to 2014-15). It was brought to the notice of the Ld. CIT(A) that in that case the Tribunal agreed with the assessee’s contention that such a levy of fees cannot be made u/s. 234E of the Act prior to 01.06.2015 since there was no enabling provision in section 200A of the Act for raising a demand in respect of levy of fees u/s. 234E of the Act. Therefore, according to the Tribunal, the levy of late fees is beyond the scope of the adjustment provided u/s. 200A of the Act and the Tribunal held that no fees can be levied u/s. 234E of the Act in terms of section 200A of the Act, as admittedly the date of filing of TDS statement and date of intimation are much prior to 01.06.2015. Thereafter, the Ld. CIT(A) after considering the Tribunal’s order in M/s. Prakash Industries Ltd. (supra) and after taking note of the decision of the Hon’ble Gujarat High Court in the case of Rajesh Kourani Vs Union of India (2017) 83 Taxmann.com 137 (Guj) wherein the Hon’ble High Court had concluded that section 234E of the Act is a charging provision creating a charge for levying fee for certain defaults in filing statements, and fee prescribed u/s. 234E of the Act can be levied even without a regulatory provision being found in section 200A for computation of fee, the Ld. CIT(A) heavily relied on the said decision of Hon’ble Gujarat High Court in Rajesh Kourani (supra) wherein it was held that the appellant’ s/assessee’ s case that the late filing fee which is levied u/s. 234E of the Act is legal and is correct and, therefore, according to him, the late fee levied by AO (TDS) u/s. 234E of the Act is sustainable and so he confirmed it.
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