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Income Tax Appellate Tribunal, PUNE ‘B’ BENCHES :: PUNE
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE ‘B’ BENCHES :: PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER & DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER ITA Nos.263 to 265/PUN/2023 (A.Y. 2015-16, 2013-14 & 2014-15) Pratap Pundlikrao Pawar, Vs DCIT, CPC - TDS. Plot No.18, Shri Datta Sneh Nagar Society, Sambhaji raje Chowk, Morewadi, Ambajogai, Dist. - Beed PAN: AKNPP 8966 F Appellant Respondent Assessee by : Shri Shubham N. Rathi, CA Revenue by : Shri M.G. Jasnani, DR Date of hearing : 01/05/2023 Date of pronouncement : 02/05/2023 O R D E R PER DR. DIPAK P. RIPOTE, AM: These three appeals filed by the same Assessee Shri Pratap Pundlikrao Pawar are directed against the separate orders of Commissioner of Income Tax (Appeals) [NFAC], Delhi, all dated 12/01/2016, emanating from assessment orders of ACIT, CPC u/s. 200A(1) of the Act for the following assessment years:- ITA No. A.Y. Quarter Date of order u/s. 200A ITA No.263/PUN/23 2015-16 Q-4 25/01/2016 Q-1 16/10/2016 ITA No.264/PUN/23 2013-14 Q-2 16/10/2016 Q-3 16/10/2016 Q-4 26/12/2013 ITA No.265/PUN/23 2014-15 Q-4 31/12/2016
ITA Nos.263-265/PUN/2023 Pratap Pundlikrao Pawar
Since the facts and issues in all the appeals are common, clubbed and heard together and disposed of by way of this consolidated order. For the sake of convenience, we take the facts of ITA No. 263/PUN/2023. The assessee has raised the following grounds of appeal:
“1. NON-ACCEPTANCE OF CONDONATION OF DELAY 1.1 The Learned Commissioner of Income Tax (Appeals) [“the Ld. CIT(A)] has erred in not condoning the delay in filing of the appeal without considering the reason for delay in appeal. 1.2. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in not deciding the issue on merits. 1.3 The appellant prays that the delay be condoned and appeal should be taken up for the hearing. 2. THE LEVY OF LATE FEES U/S 234E OF Rs. 50,200 FOR AY 2015-16 (QUARTER 4)(26Q) 2.1 The Ld. CIT (A) has erred in affirming the intimation order u/s 200A of the Income-tax Act, 1961 [“the Act”] and confirming the levy of late fees of Rs.50,200/- u/s 234E of the Act in the intimation generated u/s 200A passed in respect of TDS statement filed in Form 26Q for Quarter 4 of A.Y. 2015 - 16. 2.2 The Ld. CIT(A) has failed to appreciate that in respect of the TDS statements filed for the period prior to 01.06.2015, the late fee u/s 234E could not have been levied in the intimation order u/s 200A and hence, the levy of late fee in respect of the TDS statement filed for A.Y.2015-16 (Q4) was not justified and deserves to be deleted. 3. THE LEVY OF LATE FEES U/S 234E OF RS. 35,800 FOR AY 2015-16 (QUARTER 4) (24Q) 3.1 The Ld. CIT (A) has erred in affirming the intimation order u/s 200A of the Income - tax Act, 1961 [“the Act”] and confirming the levy of late fees of Rs.35,800/- u/s 234E of the Act in the intimation generated u/s 200A passed in respect of TDS
ITA Nos.263-265/PUN/2023 Pratap Pundlikrao Pawar
statement filed in Form 24Q for Quarter 4 of A.Y. 2015 - 16. 3.2 The Ld. CIT(A) has failed to appreciate that in respect of the TDS statements filed for the period prior to 01.06.2015, the late fee u/s 234E could not have been levied in the intimation order u/s 200A and hence, the levy of late fee in respect of the TDS statement filed for A.Y. 2015- 16 (Q 4) was not justified and deserves to be deleted. 4. The Appellant craves leave to add, alter, amend, delete or substitute any of the above grounds of appeal.” 2. The ld.AR submitted that the issue involved in these appeals is squarely covered in favour of the assessee by the order of this Tribunal. He filed copy of the order. He also submitted that as per Form-35, the assessee had deducted the TDS amount and credited to the Government account, but there is only delay in filing the TDS return.
Ld.DR relied on the order of the ld.CIT(A).
We have heard both the parties and perused the record.
4.1 In the lead case i.e. ITA No.263/PUN/2023, the order u/s. 200A(1) for the F.Y. 2014-15 for Q-4 was passed on 25/01/2016 by levying late fee u/s. 234E of Rs. 50,200/-. The assessee has filed appeal before the ld.CIT(A) and pleaded that due to ignorance of provisions of TDS, return could not be filed in time and the ITP had not properly advised him. The ld.CIT(A) held that delay cannot be condoned and dismissed the assessee’s appeal.
4.2 It is observed as per Form-35 of the assessee and pleaded before us, assessee had deducted TDS and
ITA Nos.263-265/PUN/2023 Pratap Pundlikrao Pawar
credited to the government account, however, he failed to file the TDS return within the stipulated time.
4.3 The issue involved in this case is whether late fee under section 234E can be levied for F.Y. 2014-15. This issue is covered in favour of the assessee. The ITAT Pune Bench in the case of Medical Superintendent Rural Hospital, vs. DCIT, CPC (TDS) [2018] 100 taxmann.com 78 (Pune Tribunal) has observed as under:
“11. We have heard the rival contentions and perused the record. The issue arising in the present bunch of appeals is against levy of late filing fees under section 234E of the Act while issuing intimation under section 200A of the Act, in the first bunch of appeals. The second bunch of appeals in the case of Junagade Healthcare Pvt. Ltd. is against order of Assessing Officer passed under section 154 of the Act rejecting rectification application moved by assessee against intimation issued levying late filing fees charged under section 234E of the Act. The case of assessee before us is that the issue is squarely covered by various orders of Tribunal, wherein the issue has been decided in respect of levy of late filing fees under section 234E of the Act, in the absence of empowerment by the Act upon Assessing Officer to levy such fees while issuing intimation under section 200A of the Act. The Tribunal vide order dated 21.09.2016 with lead order in Maharashtra Cricket Association v. Dy. CIT [2016] 74 taxmann.com 6 (Pune - Trib.) relating to assessment years 2013-14 and 2014-15 for the respective quarters deliberated upon the issue and held as under:— "34. Accordingly, we hold that the amendment to section 200A(1) of the Act is procedural in nature and in view thereof, the Assessing Officer while processing the TDS statements / returns in the present set of appeals for the period prior to 01.06.2015, was not empowered to charge fees under section 234E of the Act. Hence, the intimation issued by the Assessing Officer under section 200A of the Act in all these appeals does not stand and the demand raised by way of charging the fees under section 234E of the Act is not valid and the same is deleted. The intimation issued by the Assessing Officer was beyond the scope of adjustment provided under section 200A of the Act and such adjustment could not stand in the eye of law."
ITA Nos.263-265/PUN/2023 Pratap Pundlikrao Pawar
The said proposition has been applied in the next bunch of appeals with lead order in Vidya Vardhani Education & Research Foundation v. Dy. CIT [2017] 88 taxmann.com 894 (Pune - Trib.) and also in Swami Vivekanand Vidyalaya (supra) and Medical Superintendant Rural Hospital v. ACIT [IT Appeal Nos.2072 & 2073 (PUN) of 2017, order dated 21-12-2017], which has been relied upon by the learned Authorized Representative for the assessee. 13. The Hon'ble High Court of Karnataka in the case of Fatheraj Singhvi (supra) had also laid down similar proposition that the amendment to section 200A of the Act w.e.f. 01.06.2015 has prospective effect and is not applicable for the period of respective assessment years prior to 01.06.2015. The relevant findings of the Hon'ble High Court are in paras 21 and 22, which read as under:— "21. However, if Section 234E providing for fee was brought on the state book, keeping in view the aforesaid purpose and the intention then, the other mechanism provided for computation of fee and failure for payment of fee under Section 200A which has been brought about with effect from 1.6.2015 cannot be said as only by way of a regulatory mode or a regulatory mechanism but it can rather be termed as conferring substantive power upon the authority. It is true that, a regulatory mechanism by insertion of any provision made in the statute book, may have a retroactive character but, whether such provision provides for a mere regulatory mechanism or confers substantive power upon the authority would also be a aspect which may be required to be considered before such provisions is held to be retroactive in nature. Further, when any provision is inserted for liability to pay any tax or the fee by way of compensatory in nature or fee independently simultaneously mode and the manner of its enforceability is also required to be considered and examined. 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
ITA Nos.263-265/PUN/2023 Pratap Pundlikrao Pawar
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 expressly provided or impliedly demonstrated, any provision of statute is to be read as having prospective effect and not retrospective effect. Under the circumstances, we find that substitution made by clause (c) to (f) of sub-section (1) of Section 200A can be read as having prospective effect and not having retroactive character or effect. Resultantly, the demand under Section 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 assessment year prior to 1.6.2015. However, we make it clear that, if any deductor has already paid the fee after intimation received under Section 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest." 14. The Hon'ble High Court thus held that where the impugned notices given by Revenue Department under section 200A of the Act were for the period prior to 01.06.2015, then same were illegal and invalid. Vide para 27, it was further held that the impugned notices under section 200A of the Act were for computation and intimation for payment of fees under section 234E of the Act as they relate for the period of tax deducted at source prior to 01.06.2015 were being set aside.
Respectfully following the above decision of ITAT Pune Bench, we hold that levy of late fee u/s. 234E of the Act for Q-4 of F.Y. 2014-15 is bad in law as it is prior to 01/06/2015. Therefore, the Assessing Officer is directed to delete the said late fee. Accordingly, the appeals of the assessee are allowed.
ITA Nos.263-265/PUN/2023 Pratap Pundlikrao Pawar 6. ITA Nos. 264 & 265/PUN/2023
The facts of ITA No.263/PUN/2023 are similar to the facts of ITA Nos. 264 & 265/PUN/2023, therefore, our decision in ITA No.263/PUN/2023 shall apply mutatis mutandis to these appeals also, as late fee levied u/s.234E in these appeals is for the period prior to 01/06/2015.
In the result, appeals of the assessee are allowed. Order pronounced in open Court on 02nd May, 2023.
Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 02nd May, 2023 vr Copy to : 1. The Appellant. 2. The Respondent. 3. The Pr. CIT concerned. 5. The DR, ITAT, “B” Bench, Pune. 6. Guard File. By Order // TRUE COPY // Senior Private Secretary ITAT, Pune.