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Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI
Before: SHRI MAHAVIR SINGH, VICE- & SHRI G. MANJUNATHA
आदेश / O R D E R
PER BENCH: These three appeals filed by the assessee are directed
against separate, but identical orders passed by the
Commissioner of Income Tax (Appeals), National Faceless
Appeal Centre (NFAC), Delhi, all dated 08.09.2021 and
pertain to assessment years 2013-14 to 2015-16.
The assessee has also filed three stay applications
seeking stay from recovery of outstanding disputed demand of
Rs. 1,43,800/-, Rs.5,76,190/- and Rs.5,93,000/- for the
assessment years 2013-14 to 2015-16 respectively.
2 ITA Nos. 590 to 592 /Chny/2022 & S.P. Nos 47 to 49/Chny/2022
At the outset, we find that there is a delay of 249 days in
appeals filed by the assessee. The learned AR present for
the assessee submitted that delay in filing of appeals is mainly
due to lockdown imposed by the Govt. on account of spread of
Covid-19 infections and in view of Hon’ble Supreme Court suo
motu Writ Petition No.3 of 2020, if the period of delay is
covered within the period specified in the order of the Apex
Court , then same needs to be condoned in view of specific
problem faced by the public on account of Covid-19 pandemic.
The learned DR, on the other hand, fairly agreed that
delay may be condoned in the interest of justice.
Having heard both sides and considered reasons given by
the learned AR, we find that the Hon’ble Supreme Court in suo
motu Writ Petition No.3 of 2020, has extended limitation
applicable to all proceedings in respect of courts and tribunals
across the country on account of spread of Covid-19 infections
w.e.f. 15.03.2020, till further orders and said general exemption
has been extended from time to time. We further noted that
delay noticed by the Registry pertains to the period of general
exemption provided by the Hon'ble Supreme Court extending
3 ITA Nos. 590 to 592 /Chny/2022 & S.P. Nos 47 to 49/Chny/2022
limitation period applicable for all proceedings before Courts
and Tribunals and thus, considering facts and circumstances of
the case and also in the interest of natural justice, we condone
delay in filing these appeals filed by the assessee.
Since, facts are identical and issues are common, for the
sake of convenience, these appeals are heard together and
are being disposed off, by this consolidated order. The
assessee has more or less filed common grounds of appeal for
both assessment years, therefore, for the sake of brevity,
grounds of appeal filed for the assessment year 2013-14 are
reproduced as under:-
“1. The Order passed by the Ld CIT(A) is opposed to law and contrary to the facts and circumstances of the case and is therefore unsustainable.
The Ld CIT(A) failed to consider the provisions contained in section 200A and its amendment w.e.f 01.06.2015 and confirmed the levy of penalty u/s 234E.
The Ld CIT(A) failed to consider the various judicial pronouncements on levy of penalty u/s 234E wherein it is held that the levy of penalty u/s 234E is only prospective and cannot be applied retrospectively.”
At the time of hearing, we find that the issue involved in
these appeals is squarely covered. Therefore, with the
4 ITA Nos. 590 to 592 /Chny/2022 & S.P. Nos 47 to 49/Chny/2022
consent of the learned AR as well as learned DR, we proceed
to take up the appeals itself for disposal and thus, three stay
applications filed by the assessee have become infructuous and
accordingly, these stay applications are dismissed.
Brief facts of the case are that for the relevant
assessment years, the assessee has filed TDS Quarterly
returns in Form 24Q beyond due date specified under the
Act. The Assessing Officer has assessed TDS quarterly returns
filed by the assessee under section 200A and levied late filing fee under section 234E of the Income Tax Act, 1961 [“Act” in short] for the delay in filing the said statements for all the assessment year. The assessee has challenged the levy of late filing fee under section 234E of the Act before the learned CIT(A). Therefore, the CIT(A), after considering the relevant materials on
record dismissed these appeals by affirming order of the Assessing Officer towards imposing late fee levied u/s.234E of the Act.
We have heard both the parties, perused material 9.
available on record and gone through orders of the authorities
5 ITA Nos. 590 to 592 /Chny/2022 & S.P. Nos 47 to 49/Chny/2022
below. The solitary issue that needs to be resolved in the given
facts and circumstances of the case is whether the Assessing Officer can levy late fee prescribed under section 234E of the Act,
when the quarterly return filed by the tax deductor for the period
prior to 01.06.2015, when the law has been amended by Finance
Act enabling the Assessing Officer to compute late fee while
processing TDS returns under section 200A of the Act. The
provisions of section 234E of the Act has been inserted to the
statute by Finance Act with effect from 01.07.2012 and provides levy of late fee for belated filing of quarterly return filed by the tax
deductor. The Assessing Officer started levying of late fee under
section 234E of the Income Tax Act, 1961 while processing
quarterly TDS return and started issuing intimation to the assessees. The issue has been challenged before various Courts
by the assessees by writ and challenged the validity of provision
of section 234E of the Act. In some cases, some Courts have
granted stay of operation of intimation issued by the Department under section 200A of the Act. Therefore, on the basis of
judgement of the Hon’ble High Court, the assessees have started
challenging the intimation issued by the Assessing Officer before
the ld. CIT(A). The ld. CIT(A) has rejected the arguments taken by
6 ITA Nos. 590 to 592 /Chny/2022 & S.P. Nos 47 to 49/Chny/2022
the assessee and confirmed late fee levied under section 234E of
the Income Tax Act, as per mandate of the statute. In the
meantime, the Hon’ble Karnataka High Court in the case of
Fatheraj Singhvi v. Union of India [2016] 289 CTR 602
(Karnataka) had considered the issue and after analyzing the
provisions of section 234E of the Act and section 200A of the Act
and held that in the absence of enabling provision in section 200A of the Act, the Assessing Officer cannot levy late fee under
section 234E of the Act, while processing the quarterly TDS return
filed for the period of the respective assessment years prior to
01.06.2015. A similar view has been expressed by the Hon’ble
Kerala High Court in the case of Olari Little Flower Kuries (P.) Ltd.
v. Union of India [2022] 134 taxmann.com 111 (Kerala) after
considering the decision of Hon’ble Karnataka High Court in the
case of Fatheraj Singhvi v. Union of India [2016] 289 CTR 602
(Karnataka) and held that the provisions of section 200A of the
Act were mandated to enable computation of late fee payable
under section 234E of the Act, at the time of processing of quarterly TDS return and the said amendment came into effect
from 01.06.2015. Thus, the intimation issued by the Assessing
Officer under section 200A of the Act to levy late fee for belated
7 ITA Nos. 590 to 592 /Chny/2022 & S.P. Nos 47 to 49/Chny/2022
return for the period prior to 01.06.2015 is invalid. Subsequent to the decisions of the Hon’ble Karnataka High Court and the Hon’ble Kerala High Court, series of decisions have been rendered by various Benches of the Tribunal and held that late fee under section 234E of the Act cannot be levied for the period prior to 01.06.2015, because, there was no enabling provision to levy such late fee.
In this case, for the AY 2013-14, the quarterly return filed by the assessee and order passed by the Assessing Officer are on or before 01.06.2015 and thus, there cannot be any late fees for filing return u/s.234E of the Act, and hence, addition made for the AY 2013-14 is deleted. For the AY 2014-15, the assessee has filed Form 26Q for 3rd quarter of FY 2013-14 after 01.06.2015 and the CPC (TDS) has processed the return filed by the assessee after 01.06.2015 and thus, late fees provided u/s.234E of the Act, can be levied and thus, late fees levied for delay in filing Form 26Q for the 3rd quarter alone is sustained. As far as other returns filed by the assessee for the FY 2013-14 relevant to the AY 2014- 15, all returns were filed and processed before 01.06.2015 and thus, the Assessing Officer cannot levy late fees u/s.234E of the Act and thus, late fees filed for the AY 2014-15 except Form 26Q
8 ITA Nos. 590 to 592 /Chny/2022 & S.P. Nos 47 to 49/Chny/2022
for 3rd quarter, is deleted. As regards, quarterly return filed for the AY 2015-16, the assessee has filed all returns on or after
01.06.2015 and the CPC(TDS) had also processed the returns filed by the assessee on or after 01.06.2015 and thus, the Assessing Officer can levy late fees u/s.234E of the Act and thus, late fees levied by the Assessing Officer u/s.234E of the Act, for
the AY 2015-16, is confirmed.
In the result, the appeals filed by the assessee for the AY
2013-14 is allowed, for the AY 2014-15 is partly allowed and for the AY 2015-16 is dismissed and the stay applications filed by the assessee are dismissed as infructuous.
Order pronounced in the open court on 29th July, 2022 Sd/- Sd/- ( महावीर �संह ) ( जी. मंजुनाथ ) (Mahavir Singh) (G. Manjunatha ) उपा�य�/ Vice-President लेखा सद&य / Accountant Member चे(नई/Chennai, )दनांक/Dated 29th July, 2022 DS आदेश क� ��त+ल,प अ-े,षत/Copy to: 1. Appellant 2. Respondent 3. आयकर आयु.त (अपील)/CIT(A) 4. आयकर आयु.त/CIT 5. ,वभागीय ��त�न2ध/DR 6. गाड� फाईल/GF.