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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
ORDER PER DR. DIPAK P. RIPOTE, AM: These two appeals filed by the one Assessee are directed against the separate orders of ld.Commissioner of Income Tax(Appeals)-1, Aurangabad for the Assessment Years 2014-15 and 2015-16, respectively, both dated 20.08.2019. Since the facts and issue involved in both these appeals are same, therefore, two appeals are clubbed, heard and are decided together by a consolidated order. For the sake of convenience, we take the Appeal in for A.Y.2014-15 as lead case.
The Assessee in has raised the following grounds of appeal: & 1544/PUN/2019 for A.Ys.2014-15 & 15-16 Post Master Head Post Office Parbhani Vs. I.T.Commissioner of I.T.(TDS) [A] “The LR CIT (A] 1 - Aurangabad have dismissed the appeal on the ground that, delay could be condoned only where actually sufficient cause in its true sense is shown by the assessee. Further, he stated that, without going in to the merit of the appeal, the appeal is treated as 'dismissed'. Our ground for condonation of delay is that, the intimation issued by CPC - TDS, Ghaziabad was not in proper form prescribed by 1 rule no 15 of IT Rule, 1962 with reference to the section 156 in form no 7. We rely on ITAT Bangalore, & 2823/Bang/2018, Assessment Year 2013-14 Smt. Veena Somani, Bangaluru V/s. The Assistant Commissioner of Income Tax, CPC-TDS, Ghaziabad, in said order in Para No 5.0 mentioned as under: "The Hon'ble Apex Court in the case of Collector, Land Acquisition Vs. MST Katiji and Others (1987) 167ITR 471 (SC), while laying down the principles for considering matters of condonation of delay in filing appeals, has stated that substantial justice should prevail over technical considerations. Considering the aforesaid principles laid down by the Hon'ble Apex Court, the facts and peculiar circumstances of the case on hand, we are of the considered opinion that this is a fit case for condoning the delay in filing the nine appeals before the CIT(A) The Tribunal observed that, the Hon'ble Apex Court while laying down the principles for considering matters of condonation of delay in filing appeals had stated that, substantial justice should prevail over technical considerations. Considering the aforesaid principles laid down by the Hon'ble Supreme Court, the facts and peculiar circumstances of the case on hand, the Tribunal opined that it was a fit case for condoning the delay in filing the appeal before the CIT (A). Sir, the above grounds please be consider in our case and allow the condonation and waive the Late Filing Fees imposed U/s.234E.”
3. The Assessee in LR CIT (A] 1 - Aurangabad have dismissed the appeal on the ground that, delay could be condoned only where actually sufficient cause in its true sense is shown by the assessee. Further, he stated that, without going in to the merit of the appeal, the appeal is treated as 'dismissed'. Our ground for condonation of delay is that, the intimation issued by CPC - TDS, Ghaziabad was not in proper & 1544/PUN/2019 for A.Ys.2014-15 & 15-16 Post Master Head Post Office Parbhani Vs. I.T.Commissioner of I.T.(TDS) [A]
form prescribed by 1 rule no 15 of IT Rule, 1962 with reference to the section 156 in form no 7. We rely on ITAT Bangalore, & 2823/Bang/2018, Assessment Year 2013-14 Smt. Veena Somani, Bangaluru V/s. The Assistant Commissioner of Income Tax, CPC-TDS, Ghaziabad, in said order in Para No 5.0 mentioned as under: "The Hon'ble Apex Court in the case of Collector, Land Acquisition Vs. MST Katiji and Others (1987) 167ITR 471 (SC), while laying down the principles for considering matters of condonation of delay in filing appeals, has stated that substantial justice should prevail over technical considerations. Considering the aforesaid principles laid down by the Hon'ble Apex Court, the facts and peculiar circumstances of the case on hand, we are of the considered opinion that this is a fit case for condoning the delay in filing the nine appeals before the CIT(A) The Tribunal observed that, the Hon'ble Apex Court while laying down the principles for considering matters of condonation of delay in filing appeals had stated that, substantial justice should prevail over technical considerations. Considering the aforesaid principles laid down by the Hon'ble Supreme Court, the facts and peculiar circumstances of the case on hand, the Tribunal opined that it was a fit case for condoning the delay in filing the appeal before the CIT (A). Sir, the above grounds please be consider in our case and allow the condonation and waive the Late Filing Fees imposed U/s.234E.”
We note that assessee in his condonation of delay application explained the delay successfully, therefore, considering the statement of facts submitted by the assessee, the delay is condoned.
Brief facts of the case are that the assessee is a Post Master Head Post Office Parbhani. The assessee is required to deduct tax and file TDS Returns. The assessee had filed TDS statement for Quarter 1 to 4 i.e. for quarter-1 of F.Y. 2013-14 on 08.08.2014 and & 1544/PUN/2019 for A.Ys.2014-15 & 15-16 Post Master Head Post Office Parbhani Vs. I.T.Commissioner of I.T.(TDS) [A] quarter-2 of F.Y.2013-14 on 03.02.2016, for quarter-3 on 15.07.2014 and 03.02.2016 respectively whereas due date was 15.07.2013 for quarter-1, 15.10.2013 for quarter-2, 15.01.2014 for quarter-3 and 15.05.2014 for quarter-4 in filing TDS Returns. The Assessing Officer levied late filing fees under section 234E of the Income Tax Act.
Aggrieved by the order of the AO, the assessee filed appeal before the ld.Commissioner of Income Tax(Appeal). The ld.CIT(A) dismissed the appeal as according to ld.CIT(A) there was delay more than 3 to 5 years in filing of appeal. The ld.CIT(A) has further held that the in the present case, the appellant has failed to demonstrate any sufficient cause or a reasonable cause for delay in filing of appeal. Therefore, on the facts of this case, I hold that the rule of limitation also contains a rule of justice, especially where an assessee chooses not to take up requisite legal remedies for an inordinate length of time and without reasonable cause, one should apply the rule of limitation. Therefore, the ld.CIT(A) did not condone the delay and dismissed the appeal.
The only issue involved is levy of late fee u/s.234E of the Act, for delay in submitting TDS statement. There is no dispute regarding delay in submitting the TDS statements. This issue is covered in favour of the assessee. The ITAT Pune in the case of Medical & 1544/PUN/2019 for A.Ys.2014-15 & 15-16 Post Master Head Post Office Parbhani Vs. I.T.Commissioner of I.T.(TDS) [A] 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."
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. & 1544/PUN/2019 for A.Ys.2014-15 & 15-16 Post Master Head Post Office Parbhani Vs. I.T.Commissioner of I.T.(TDS) [A]
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 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 & 1544/PUN/2019 for A.Ys.2014-15 & 15-16 Post Master Head Post Office Parbhani Vs. I.T.Commissioner of I.T.(TDS) [A] 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."
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 the levy of late fee under section 234E of the Act, is bad in law for the F.Y.2013-14. Therefore, the Assessing Officer is directed to delete the said late fee. Accordingly, the appeal of the assessee is allowed.
A.Y.2015-16: 9. As we have noted above that the assessee has raised identical ground of appeal and the facts of this appeal under consideration are almost identical to the facts for the A.Y. 2014-15. Therefore, our decision in will apply mutatis-mutandis to the appeal number in ITA No.1544/PUN/2019. Accordingly, this appeals is allowed . & 1544/PUN/2019 for A.Ys.2014-15 & 15
16. Post Master Head Post Office Parbhani Vs. I.T.Commissioner of I.T.(TDS) [A]
In the result, both the appeals of the assessee are allowed. Order pronounced in the open Court on 18th July, 2022.