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Income Tax Appellate Tribunal, DELHI BENCH “SMC”: NEW DELHI
Before: SHRI KUL BHARAT
way of a consolidated order. is being taken up as a leading case.
At the outset it is submitted that TDS return for F.Y. 2013-14 and 2014-15 (total no. 8) were filed late but all before 13.3.2015 and order u/s 200A charging fee u/s 234E was passed before 19.3.2015 i.e. prior to 1.6.2015. Learned counsel for the assessee drew my attention to the chart. For the sake of convenience the chart filed by the assessee is reproduced as under:
Financial year 2013-14 Asstt. Year 2014-15 Qr. Form No. Due Date Date of Delay Interest Late fee Date of filing paid charged u/s order 234E 2nd 26Q 15.10.2013 18.9.2014 338 32202 67600 23.9.2014 3rd 26Q 15.01.2014 05.11.2014 294 16466 58800 212.11.2014 4th 26Q 15.05.2014 05.11.2014 174 6752 34800 12.11.2014 4th 27Q 15.05.2014 05.11.2014 174 0 34800 12.11.2014 4th 24Q 15.05.2014 12.01.2015 242 19074 48400 16.1.2005 244400 Financial year 2014-15 Asstt. Year 2015-16 Qr. Form No. Due Date Date of Delay Interest Late fee Date of filing paid charged u/s order 234E 1st 26Q 15.07.2014 13.03.2015 241 813 11930 19.03.2015 2nd 26Q 15.10.2014 13.03.2015 149 1822 21500 19.03.2015 3rd 26Q 15.1.2015 13.03.2015 57 8343 11040 19-3-2015 44470
It is contended that under identical facts the Division Bench of this Tribunal in the case of ICMC Projects Pvt. Ltd. Vs. ITD, CPC, Bengaluru & others (ITA no. 1361/Del/2021 & others order dated 25.02.2022) has decided the issue in favour of the assessee.
Learned counsel has placed reliance on the decision of Division Bench of Indore Bench this Tribunal rendered in the case of Sukhmani Automobiles & Ors.
Vs. ITO, TDS, Indore & Ors. [ 413, 424 & 425/Ind/2019 dated 19.03.2020]; and the judgment of the Hon’ble Karnataka High Court rendered in the case of Fatheraj Singhvi and Ors. Vs. Union of India and Ors. [ Writ Appeal nos. 2663-2674/2015(T-IT) dated 16.08.2016].
Learned DR opposed the submissions and supported the orders of the authorities below. find that the Division Bench of this Tribunal under identical facts has decided the issue in a bunch matter in & others ICMC Projects Pvt. Ltd. Vs. ITD, CPC, Bengaluru, by holding as under:
“5. In the absence of any machinery provisions to charge the late fee u/s 200A, the issue of levy of fee u/s 234E which was introduced w.e.f. 01.06.2015 has been examined in the context of its applicability whether retrospective or prospective.
The Hon'ble Karnataka High Court in case of Fatehraj Singhvi & Ors. vs. UOI & Ors. 2016 (9) TMI 964 is in favour of the assessee holding that the amendments brought in statute w.e.f. 01.06.2015 are prospective in nature and as such, notices issued u/s 200A of the Act for computation and intimation of payment of late filing fee u/s 234E of the Act relating to the period of tax deduction prior to 01.06.2015 was not maintainable.
7. At the same time, the Hon'ble Gujarat High Court in case of Rajesh Kourani vs. UOI (2017) 83 taxmann.com 137 has decided the issue against the assessee.
8. Under these circumstances, we are of the considered view that the decision rendered by Hon'ble Supreme Court in the case of Vegetable products Limited 88 ITR 192 (SC) pronouncing that, when there are conflicting decisions the view taken in favour of the assessee should be owed is relevant to adjudication of the matter before us. Hence, the impugned order passed by the First Appellate Authorities confirming the late fee levied by the AO u/s 200A read with section 234E in all the cases wherein the defaults were prior to 01.06.2015 is not sustainable in the eyes of law.
As a result, the fee levied u/s 234E is hereby ordered to be deleted.”
The Revenue has not brought to my notice any other binding precedence in favour of the Revenue. Therefore, respectfully following the ratio of decision of 5 to 7600/Del/2017 Division Bench of this Tribunal (supra), I hereby direct the Assessing Officer to delete the impugned penalty. This finding would also apply to other appeals of this bunch (ITA nos. 7594/Del/2017 to 7600/Del/2017).
Assessee’s appeals stand allowed.
Order pronounced in open court on 15th December, 2022.