Shri Rohil Singhal Vs Shri Waseem Arshad (ITAT Agra)
It is seen that prior 01.06.2015, there was no enabling provision in the Act u/s 200A for raising demand in respect of levy of fee u/s 234E of the Act. The provision of Section 234E of the Act is charging provision i.e. substantive provision which could not be applied retrospectively, unless it is expressly provided in the Act, to levy the late fee for any delay in filing the TDS statement for the period prior to 01.06.2015. The counsel for the assessee has rightly contended that in the absence of enabling provisions u/s 200A of the Act, such levy of late fee is not valid relying on the decisions in the cases of ‘CIT vs. Vatika Township Pvt. Ltd. (2014) 367 ITR 466 (SC), ‘Sudarshan Goyal vs DCIT (TDS)’ ITA No.442/Agr/2017 and Fatehraj Singhvi Vs. UOI (2016) 289 CTR 0602 (Karn) (HC). The decisions relied on by the Ld. DR are distinguishable on facts, as the issue involved in those cases pertains to interest u/s 201(1) and 201(1A) on the amount of TDS whereas in the present cases the issue were pertains to liability of late fee u/s 234E of the Act for delay in filing TDS statement which was inserted from 01.06.2015.
FULL TEXT OF THE ITAT JUDGMENT
This bunch of appeals for AY 2013-14 are directed against the order of ld. CIT(A), Gwalior against upholding levy of fee u/s 234E of the Income Tax Act, 1961(hereinafter short the ‘Act’).
2. There was a delay of 24 days in filing appeals in respect of 37 branches out of 88 branches located at distant places.
3. The counsel for the assessee has submitted that after receipt of the intimation/statement of levy of late fee u/s 234E of the Act, the branches had to report to the respective regional head offices for seeking necessary approval and therefore it is forwarded to the regional head and further to the Zonal head in the respective hierarchy. After giving the necessary approval, the matter travels back to the respective branches to the same hierarchy. Thus, this process takes considerable time causing which caused delay in filing these appeals by the concerned appellate branches. We find that the assessee has reasonable cause for delay in filing the aforesaid 37 appeals out of 88 appeals. Therefore, the delay in filing these appeals is condoned accordingly.
4. Since a common issue is involved in all these appeals relating to levy of late filing fee u/s 234E of the Act, they are being disposed of by this consolidated order for the sake of convenience.
5. In these cases, the appellants have deposited TDS in Central Government account as per TDS provisions of the Act. They are required to file quarterly TDS returns (statements) intimating the tax deducted at source from various payments made to various persons in each quarters for the financial relevant. To ensure timely compliance on the part of the deductors, the provisions for late filing fee u/s 234E has been inserted in clause (c) to section 200A of the Act by the Finance Act, 2015, w.e.f. 1.06.2015. Before the ld. CIT(A), these appellants contended that before making necessary amendment in Section 200A of the Act w.e.f. 01.06.2015, there was no enabling provisions u/s 200A of the Act for raising demand in respect of levy of penalty u/s 234E of the Act and thus in the absence of enabling provision for making such adjustment for levying late fee u/s 234E, no such late fee could be imposed by the AO. In support, the counsel for the applicants placed reliance on the decision in the cases of ‘Sibia Healthcare Pvt. Ltd. Vs. DCiT (TDS) (2015) 121 DTR 81 (ASR) (Trib) and G Indhirani Vs. DCIT (2015) 43 CCH 511 (Chen-Trib) wherein it was held that in the absence of enabling provisions u/s 200A of the Act, such levy of late fee is not valid. The ld. CIT(A) has rejected this contention of the appellants by relying on the decision in the case of ‘Rajesh Kaurani vs. Union of India’, 83 Taxmann.com 137(Guj) and confirmed the levy of late fee u/s 234E of the Act. Aggrieved, appellants are in appeal before us.
6. The counsel for the assessee has submitted a statement of TDS returns (APB, Pge. 5-9) contending that all the TDS returns statements has been filed are in respect of the period prior to the date 01.06.2015 i.e. the date from which clause (c) to sub Section (1) of Section 200A was inserted and incorporating Section 234E of the Act, 1961. He further submitted that prior 01.06.2015, there was no enabling provision in the Act u/s 200A for raising demand in respect of levy of fee u/s 234E of the Act. The provision of Section 234E of the Act is charging provision i.e. substantive provision which could not be applied retrospectively, unless it is expressely provided in the Act, to levy the late fee for any delay in filing the TDS statement for the period prior to 01.06.2015. For this purpose, the appellant rely on the following decisions:
i) ‘CIT vs. Vatika Township Pvt. Ltd. (2014) 367 ITR 466 (SC).
