M/S. GCL EQUIPMENT AND MACHINES PVT. LTD,MUMBAI vs. TDS CPC, GHAZIABAD

This is the bunch of 11 (eleven) appeals concerning one assessee involving only issue of levy of fee under Section 234E of the Income Tax Act, 1961 (the Act).

The learned Authorized Representative submitted that these appeal are filed late in some of the cases by 7 days. The delay has occurred within the period of January, 2022 by just 7 days wherein Corona wave is there and therefore, appeal could not be filed in time. Subsequently, on 25th January, 2022 all the appeals were filed together and the delay is of very small number of days because of pandemic, hence, same should be condoned and matter should be decided on the merits of the case.

We have carefully considered the rival contentions and find that the orders of the ld CIT (A) in these cases were served on assessee on 19th November, 2021. The due date of filing of the appeal was 60 days there from i.e. 18.01.2022. All these appeals have been filed on 25th January, 2022 causing a delay of 7 days. It is matter of common knowledge that in the month of December 2021 and January 2022, the pandemic was not over. The movement of the people and business activities were carried out in a very restrictive manner. The delay in filing of appeal has arisen in that period. Therefore, we find that there is a sufficient cause in filing appeals late. Hence, we condone the delay in filing of the impugned appeals.

Issue involved in all these appeals is levy of late fee u/s 234E of the Act by the ACIT, TDS CPC Bangalore for F.Y. 2012-13 to F.Y. 2014-15 for various quarters. The respective orders under Section 200A of the Act were passed and then late fee under Section 234E of the Act was levied for filing of form no. 26Q for respective quarters late.

Assessee preferred appeal against such orders before the learned CIT (A) submitting that amendment with effect from 1st June, 2015 is

The learned Authorized Representative submitted that on the merits, the issue is covered in favour of assessee by decision of Honourable Kerala High court , wherein it has been held that levy of late fee under Section 234E of the Act would be in order, only if the default in filing of Form no. 26Q occurs on or after 1st June, 2015. He further submitted that the reliance on the decision of the Hon'ble Gujarat High Court by the learned CIT (A) is not correct when the decision of Hon'ble kerala High Court relied upon by the assessee is placed before him. Assessee further stated that in absence of any decision of Hon'ble jurisdictional High Court, a view in favour of the

The learned Departmental Representative vehemently supported the order of learned CIT (A).

We have carefully considered the rival contentions and perused the orders of lower authorities. In the present case, the issue involved is whether late fee can be charged u/s 234 E of the Act in case of period prior to 1/6/2015. We find that this issue has been decided by the coordinate bench in one of the latest decision considering the decision of Honourable Gujarat High court , which was followed by the ld CIT [A] . the coordinate bench in SHRI SANJAY GOPAL PANDIT VERSUS NATIONAL FACELESS APPEAL CENTRE, DELHI in ITA No.1902/Mum./2021, ITA No.1903/Mum./2021, ITA No.1904/Mum./2021 dtaed April 26, 2022 has decided this issue as under :-

During the course of hearing, learned departmental representative vehemently relied upon the impugned orders passed by the learned CIT(A) and submitted that the appeals were filed belatedly by the assessee.

We have considered the submissions and perused the material available on record. In the impugned orders, it is evident that the learned CIT(A) has not denied that fee under section 234E of the Act has been levied on the assessee for the financial years under consideration. The

From the Form 35, forming part of the appeal set before us, it is evident that the assessee has raised following ground of appeal before the learned CIT(A):

Further, on merits, we find that the issue whether clause (c) of section 200A(1), as substituted by Finance Act, 2015, w.e.f. 01.06.2015, whereby the A.O. was enabled to compute the fee under section 234E of the Act while processing of statement of tax deducted at source, is prospective in nature has came up for adjudication before the Hon’ble High Courts of various States. The first decision was rendered by the Hon’ble Karnataka High Court in Fatheraj Singhvi v/s Union of India, [2016] 73 taxmann.com 252 (Kar.), whereby the Hon’ble High Court held that such an amendment is prospective in nature and thus intimation issued under section 200A of the Act for computation and intimation of payment of fee under section 234E of the Act relating to the period of tax deduction prior to 01.06.2015 was not maintainable.

However, the Hon’ble Gujarat High Court in Rajesh Kourani v/s Union of India, [2017] 83 taxmann.com 137 (Guj.), did not concur with the views expressed by the Hon’ble Karnataka High Court in Fatheraj Singhvi (supra),

Recently, the Hon’ble Kerala High Court had an occasion to deal with this issue in Olari Little Flower Kuries Pvt. Ltd. v/s Union of India, [2022] 134 taxmann.com 111 (Ker.), wherein the Hon’ble High Court had taken into consideration both the aforesaid decisions passed by the Hon’ble Karnataka High Court as well as Hon’ble Gujarat High Court. The Hon’ble Kerala High Court concurring with the decision passed by the Hon’ble Karnataka High Court in Fatheraj Sanghvi (supra) held that the provisions of section 200A of the Act as amended by Finance Act, 2015, enable computation of fee payable under section 234E of the Act at the time of processing of statement of TDS, is prospective in nature from 01.06.2015 and thus intimation issued under section 200A of the Act dealing with the fee under section 234E for belated filing of TDS return for the period prior to 01.06.2015, are invalid.

Further, we also find that the Co–ordinate Bench of the Tribunal in Permanent Magnets Ltd. v/s DCIT, ITA no.6436 to 6442/Mum./2018, order dated 07.08.2019, following the aforesaid decision of the Hon’ble Karnataka High Court in Fatheraj Sanghvi (supra) directed deletion of fee under section 234E of the Act levied vide intimation under section 200A of the Act for the period prior to 01.06.2015.

It is well established that rules of procedure are handmaid of justice. Further, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. Thus, in view of the above, as the learned CIT(A) has dismissed the appeals filed by the assessee, on delay and on defects in filing the appeal, without dealing with merits of the case, we in the substantial interest of justice deem it appropriate to restore the appeals before the learned CIT(A) for adjudication on merits after condoning the delay in filing the appeals. The assessee is also directed to obtain the copy of intimation issued under section 200A(1) for financial years under consideration from the AO(TDS) and provide the same to the learned CIT(A) for adjudication of its appeals. Needless to mention that adequate opportunity of hearing shall be granted to the assessee before passing the order and the CIT(A) shall have the liberty to call for remand report, if any, from the concerned Assessing Officer while deciding this issue.”

Therefore respectfully following the decision of the coordinate bench, ITA NO 127/M/2022, 128/M/2022 and ITA no 129/M/2022 pertaining to quarter 2,3 and 4 of F Y 2015-16 are dismissed and all other appeals are allowed.

Accordingly, Above three appeals are dismissed and other 8 appeals are allowed.