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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI BR BASKARAN, AM & SHRI N K CHOUDHRY, JM
Per N K Choudhry, Judicial Member:
This Appeal has been preferred by the Assessee against the order dated 30.01.2023 impugned herein passed by the Ld. Commissioner of Income tax, NFAC Delhi (in short Ld. Commissioner) u/s 250 of the Income tax Act 1961 (in short “the Act”) .
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In the instant case the ADIT, CPC, TDS Ghaziabad vide intimation dated 13th June 2013 and 22nd December 2013 levied the late fee of 32800/- in total {Rs. 4020/- (Q-3 in Form 26Q), 1600/- (Q-4 in Form 26Q), 25600/- (Q-3 in Form 24Q) and 2940/-(Q-4 in Form 24Q) } on account of late filling of TDS return for the financial year 2012-13 (AY: 2013-14).
The Assessee being aggrieved challenged the said levy of late filing fee before the Ld. Commissioner, who by considering the relevant provisions of section 200 and 234E of the Act, the relevant amendment dated 1st June 2015 in section 200 of the Act and various judgments passed by the Hon’ble High Courts specifically by the Hon’ble High Courts of Gujarat and Karnataka respectively in the cases of Rajesh Kourani vs. Union of India (2017) 83 taxmann.com 137 (Guj.) and Fatehraj Singhvi vs. UOP (2016) 73 taxmann.com 252 ultimately affirmed the levy of late fee u/s 234E of the Act.
The Assessee being aggrieved is in appeal before us and in support of its case relied upon various judgments of High Courts and the Tribunal. On the contrary the ld. DR refuted the claim of the Assessee and supported the impugned order, by relying upon various judgments specifically by the Hon’ble Gujarat High Court in the case of Rajesh Kourani Vs. UOI (supra) and the Hon’ble Bench of the Tribunal at Jabalpur in the case of Madhyanchal Gramin Bank Vs Income Tax Officer(TDS)-2 {ITA nos. 55-77(JAB) of 2022 decided on 31-10-2022}, citation (2023) 147 taxmann.com 443(Jabalpur-Trib).
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We have heard the parties and perused the material available on record. In the instant case issue relates to the levy of late fee qua delay in filling of TDS statement pertaining to the FY/period prior to amendment brought by way of finance Act, 2015 which came into effect from 1st June 2015. 5.1 The Ld. Commissioner affirmed the said levy of late fees, by relying upon various judgments including passed by the Hon’ble Gujarat High Court in the case of Rajesh Kourani Vs. UOI (supra) wherein levy of late fee qua delay in filling of TDS return pertaining to the period prior to 01-06-2015 was upheld. [[[[5.2 The Hon'ble Karnataka High Court in the case of Fatheraj Singhvi & Ors. vs. Union of India (supra) while dealing with the same issue analyzed the amendment dated 1st June, 2015 and construed that substitution made by Clause (c) to (f) of sub-section (1) of Sec. 200A can be read as having prospective effect and not having retroactive character or effect-Resultantly, the demand u/s 200A for computation and intimation for the payment of fee under section 234E could not be made in purported exercise of power under section 200A by the respondent for the period of the respective Asst. Year prior to 1st June, 2015. 5.3 We observe that the Amritsar Bench of the Tribunal in the case of M/s M.G.N. Khalsa High School, Jalandhar vs. ACIT, CPV Cell-TDS, Ghaziabad in ITA Nos.16,17 & 18/Asr/2019 decided on 25.07.2019 also analyzed the relevant provisions of law and taken into consideration the judgment of the Gujarat High Court in Rajesh
4 Abhianv Society Kourani (supra) which is relied upon by the Ld. Commissioner in this case and other judgments of High Courts on the identical issue and held that the provisions of charging fee under section 234E only comes in operation if the Assessee make any default in furnishing TDS Return after 1st June, 2015 when the enabling provisions in the Act have been provided, but prior to that, if there was any delay in furnishing of TDS returns, then no late fee could be levied.
4 We observe that admittedly there is a plethora of judgments in favour of the Assessee and of the Revenue. The controversy with regard to divergent views of different High Courts, has been settled by the Hon’ble Apex Court in the case of CIT VS. M/s. Vegetables Products Ltd. (88 ITR 192) by laying the dictum “that if two reasonable constructions of a taxing provision are possible that construction which favours the Assessee must be adopted.” Meaning thereby when two different views of Court are available on an issue, then the view which favors the Assessee or the judgment which favours the Assessee should be followed.
5 Admittedly there is no contrary judgment of the juri ictional High Court against the Assessee on the issue under consideration hence, by following the judgment of the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi & Ors. vs. Union of India (2016) 289 CTR (KAR) 602, we are of the considered view that late fee can not be levied u/s 234E of the Act for late filling of TDS Return which pertains to the period prior to 01-06-2015 and consequently inclined to delete the late fees of Rs. 32800/- levied by the AO and affirmed by the ld. CIT(A).
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In the result, appeal filed by the Assessee stands allowed. Orders pronounced in the open court on 27-04-2023. (B R Baskaran) (N K Choudhry) Accountant Member Judicial Member मुंबई Mumbai; Ms.Urmila
आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned 5. ववभागीयप्रवतवनवध, आयकरअपीलीयअवधकरण, मुंबई/ DR, ITAT, Mumbai 6. गार्डफाईल / Guard File आदेशधिुसधर/ BY ORDER,
.उि/सहधयकिंजीकधर (Dy./Asstt.