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Income Tax Appellate Tribunal, ‘D’ BENCH, CHENNAI
Before: SHRI G. MANJUNATHA & SHRI ANIKESH BANERJEE
आदेश /O R D E R आदेश आदेश आदेश
PER BENCH :
This batch of ten appeals, I.T.A Nos.:549 & 550, 551 to
554 & 555 to 558/Chny/2021 filed by the Assessee are
directed against separate orders of the learned Commissioner
of Income Tax (Appeals), National Faceless Appeal Centre
[NFAC], Delhi confirming the levy of late filing fee u/s.234E of
the Income Tax Act, 1961 (in brevity “the Act”) for the
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Assessment Years 2013-14 [Q3 & Q4], 2014-15 [Q1, Q2, Q3 &
Q4] & 2015-16 (Q1, Q2, Q3 & Q4] respectively generated by
the Assistant Commissioner of Income Tax, Central Processing
Cell – TDS.
At the outset, it is noticed that in appeal Nos. I.T.A.
No.549/Chny/2021, I.T.A. Nos.551 to 554/Chny/2021 and
I.T.A. Nos. 556 & 557/Chny/2021 of the Assessee are time
barred by 2 days due to circumstances beyond the control of
the Assessee because of the outbreak of ‘Covid-19’ pandemic.
The Hon’ble Bench took into cognizance the Order of the
Hon’ble Supreme Court the “Suo Moto WP 03/2020 dated
20.03.2020 while considering the condonation of delay. It is a
fact that ‘Covid-19’ pandemic was prevalent and in term of the
directions issued by the Hon’ble Supreme Court in
Miscellaneous Application No.21/2022 in Suo Motu Writ Petition
No.3 of 2020, we condone the delay of 2 days in all these
appeals and admit the appeals for adjudication on merits.
The brief facts of the case in all these appeals are that,
the common issue under consideration is levy of fees u/s.234E
of the Act. The fees is levied for default filing of TDS returns
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u/s.200A of the Act. During the processing of the TDS return,
the fees was charged by the learned Assessing Officer u/s.234E
of the Act. On the basis of the demand, the Assessee filed a
rectification petition u/s.154 of the Act by considering the
judicial directions of different courts on the basis of the
provisions prior to 01.06.2015 related to Finance Bill 2015. The
learned Assessing Officer rejected the rectification petition
u/s.154 of the Act. Being aggrieved, the Assessee filed an
appeal before the learned CIT(A) for considering the
rectification application filed u/s.154 of the Act. However, the
learned CIT(A) had passed the order while rejecting the
Assessee’s plea / arguments. Being aggrieved, the Assessee
filed an appeal before the Income Tax Appellate Tribunal [ITAT].
The learned Counsel of the Assessee, Mr. S. Sridhar
vehemently argued and submitted that the provisions of Section
234E of the Act was inserted by the Finance Act 2012 and
insertion of Clause (c) to Section 200A(1) of the Act by the
Finance Act, 2015 as well as the decision of the Co-ordinate
Benches of the Hon’ble ITAT, Chennai Benches has accepted the
provision. Mr. Sridhar, the learned Counsel of the Assessee
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referred to the judgement and made an analysis of the order of
the Tribunal in the case M/s. M.F. Textiles Private Limited,
Chennai Vs. the Assistant Commissioner of Income Tax,
Ghaziabad bearing I.T.A. No.578 & 579/Chny/2021, pronounced
on 24.02.2022. The relevant paragraph of the said order is
extracted as under:
“In the present appeals, on perusal of the facts, we find that the Assessment Years involved are prior to 01.06.2015. Therefore, we are of the considered view that the late fee charged by the Assessing Officer under section 234E of the Act, while processing quarterly TDS return under section 200A of the Act is without any authority and invalid. Hence, by respectfully following the decision of the Hon’ble Karnataka High Court in the case of Fatheraj Singhvi vs. Union of India [2016] 289 CTR 602 (Karnataka), we are of the considered view that the Assessing Officer cannot levy late fee while processing of TDS return under section 200A of the Act upto the Financial Year 2014-2015. Since, late fee charged in the present case pertaining to the Financial Year 2013-2014, we direct the Assessing Officer to delete the
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late fee charged under section 234E of the Act in the intimation issued under section 200A of the Act for the processing of quarterly TDS return filed by the Assessee.”
The learned Departmental Representative submitted
that the harmonious cognizant of provision of Section 234E,
memorandum to Finance Bill 2012, Section 200A(1)(c),
memorandum to Finance Bill 2015 makes the following
points unambiguously clear that Section 234E of the Act is
constitutionally valid.
5.1. Late fee u/s.234E is levied for default period in filing
the TDS statement / return even for the period prior to
01.06.2015. The Section 234E of the Act is a charging
section. The fee are charged automatically and so there is
no question of accepting the rectification u/s.154 of the Act.
So, he relied on the order of the learned CIT(A).
5.2. Mr. Sridhar, the learned Counsel of the Assessee
vehemently argued and mentioned that the mistake of law
can be rectified. During the appeal proceedings, the
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opportunity of hearing was not granted and he requested
for remanding back the issue for further adjudication by
considering the provisions of the judicial statute.
In different years, the returns are filed and
processed accordingly. The details of the chart are hereby
inserted for further clarification of the issue.
DETAILS OF PROCESSING OF TAX DEDUCTED AT SOURCE [TDS] RETURNS Sl. I.T.A. No. Financial Order Pass Date Interest Filing No. Year Fee u/s.234E Rs. 20th October, 2015 [1] I.T.A. No.549/Chny/2021 2013-2014 26,080-00 2nd November, 2015 [2] I.T.A. No.550/Chny/2021 2013-2014 36,654-00 13th July, 2018 [3] I.T.A. No.551/Chny/2021 2014-2015 45,702-00 13th July, 2018 [4] I.T.A. No.552/Chny/2021 2014-2015 33,633-00 13th July, 2018 [5] I.T.A. No.553/Chny/2021 2014-2015 37,175-00 13th July, 2018 [6] I.T.A. No.554/Chny/2021 2013-2014 87,686-00 13th July, 2018 [7] I.T.A. No.555/Chny/2021 2015-2016 35,164-00 13th July, 2018 [8] I.T.A. No.556/Chny/2021 2015-2016 27,588-00 13th July, 2018 [9] I.T.A. No.557/Chny/2021 2015-2016 62,921-00 13th July, 2018 [10] I.T.A. No.558/Chny/2021 2015-2016 37,199-00
We heard the rival submissions and considered the
documents available on record. The issue of Section 234E
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of the Act was considered by the Co-ordinate Bench of the
Tribunal in favour of the Assessee as the rule of consistency
is applicable in this case. In the case of Radhasoami
Satsang Vs. Commissioner of Income Tax reported in
[1992] 60 Taxmann.com 248 / 193 ITR 321 (SC) it is held
that the rule of consistency should not create anomaly.
Respectful observation of the order of the Hon’ble
Karnataka High Court in the case of Fatheraj Singhvi vs.
Union of India reported in [2016] 289 CTR 602 (Karnataka) it is
held that the provisions of Section 200A(1)(c)(d) & (f) of the
Act have come into force only w.e.f.01.06.2015 and hence the
authority concerned is not to compute and determine the fee
u/s.234E in respect of the assessment year of the earlier
periods and the return filed for the said respective assessment
years, i.e. all the assessment years and the returns prior to
01.06.2015. So, the fees should not be levied prior to
01.06.2015. The Assessee had filed a rectification petition and
without giving a reasonable opportunity, the appeal was
rejected. The specific observation is required before redressal
of the issue. The period of filing of the return and the period of
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deduction of tax, is the issue which was prior to 01.06.2015, for
levying fee u/s.234E of the Act. Accordingly, the matter is
setting aside before the learned CIT(A) for further adjudication,
and directed to pass the order considering the observations of
the Bench, as mentioned above. Nonetheless, the Assessee
should get a reasonable opportunity for redressal of its
grievances before the Authority.
In the result, all the appeal of the Assessee in I.T.A
Nos.:549 & 550, 551 to 554 & 555 to 558/Chny/2021 are
allowed for statistical purposes.
Order pronounced in the court on 15th June,2022at Chennai. Sd/- Sd/- (जीमंजूनाथा) (अिनकेश बनज�) (G. MANJUNATHA) (ANIKESH BANERJEE) लेखा सद�/ACCOUNTANT MEMBER �ाियकसद�एवं /JUDICIAL MEMBER चे ई/Chennai, िदनांक/Dated, the 15th June, 2022 IA, Sr. PS आदेशकी#ितिलिपअ&ेिषत/Copy to: 1. अपीलाथ�/Appellant 2. #(थ�/Respondent 3. आयकरआयु+ (अपील)/CIT(A) 4. आयकरआयु+/CIT 5. िवभागीय#ितिनिध/DR 6. गाड0फाईल/GF