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Facts
The assessee filed appeals against the CIT(A)'s orders for AY 2013-14 to 2015-16, which had dismissed the appeals due to a delay of 3636 days. The assessee contended that the intimation imposing late filing fees under Section 234E was only served on them on 19.03.2024, despite being dated 12.03.2014, and thus the appeal was filed promptly after actual receipt.
Held
The tribunal condoned the 3636-day delay, accepting the assessee's affidavit stating late service of the intimation and that the order had gone to spam. On merits, the tribunal quashed the levy of fees under Section 234E, stating that the power to levy such fees under Section 200A/206CB came into effect from June 1, 2015, via the Finance Act, 2015, and therefore, an intimation issued before this date was bad in law, relying on various High Court and Supreme Court judgments.
Key Issues
1. Whether the CIT(A) was justified in not condoning the delay in filing the appeal. 2. Whether the levy of fees under Section 234E for intimations issued prior to June 1, 2015, is valid in law.
Sections Cited
200A, 206CB, 234E, 249(3)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA Nos. 1506 to 1513/JP/2024
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA Nos. 1506 to 1513/JP/2024 fu/kZkj.k o"kZ@Assessment Years : 2013-14 to 2015-16 cuke Ajmer Vidyut Vitaran Nigam ITO (TDS), Vs. Limited, Bhupalsagar, AVVNL, Chittorgarh Bhupalsagar, District Chittorgarh LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: JDHA02702A vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Sunil Porwal, CA jktLo dh vksj ls@ Revenue by : Sh. Gautam Singh Choudhary, JCIT-Sr.DR lquokbZ dh rkjh[k@ Date of Hearing : 19/02/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 25/02/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM
These eight appeals are filed by the assessee aggrieved from the order of National Faceless Appeal Centre [ for short CIT(A), NFAC] for the assessment years 2013-14 to 2015-16 dated 24.10.2024 & 25.10.2024.
2. Since the issues involved in these appeals in to 1513/JP/2024 for A.Ys 2013-14 to 2015-16 are inter related, identical on each appeal, therefore, these appeals were heard together with the agreement of both the parties and are being disposed off by this consolidated order.
At the outset, the ld. AR has submitted that the matter in may be taken as a lead case for discussions as the issues involved in the lead case are common and inextricably interlinked or in fact interwoven and the facts and circumstances of other cases are identical except the difference in in figure disputed in each appeal. The ld. DR did not raise any specific objection against taking that case as a lead case.
Therefore, for the purpose of the present discussions, the case of is taken as a lead case.
Before moving towards the facts of the case we would like to mention that the assessee has assailed the appeal for assessment year 2013-14 in on the following grounds;
“1. That Ld. CIT(A) has passed the appeal order for not the assessment year/financial year appealed for but has taken wrongly A.Y/F.Y.
2. The Ld. CIT(A) has erred in levy of late filing fees u/s 234E of Rs. 58100/- is bad in law.
3. Any other matter with prior permission of the chair.” case and intimation u/s 200A/206CB of the Act was passed on 12.03.2014 therein raising at demand of Rs. 58,100/- as per provisions of section 234E of the Act. The said intimation was served upon the assessee only on 19.03.2024 on official e-mail of Ajmer Vidyut Vitran Nigma Limited and therefore, the appeal was filed late if that date of order is considered and thereby the same was filed delayed before Ld. CIT(A). The delay from the date of the order under dispute was for 3636 days. That delay was not condoned by the ld. CIT(A) and thereby the appeal of the assessee was dismissed. Ld. CIT(A) dismissed the appeal of the assessee by observing as under:-
“5.14 In view of the above, respectfully following the judgments given by the Hon'ble Courts, I am of the considered opinion that the Appellant has failed to give the sufficient reasonable cause for the delay of filing of appeal and filing of appeal consequent to passing of the order in some other case cannot be accepted as a reasonable sufficient cause for condoning the delay in filing the appeal. Therefore, the delay in filing the appeal is not condoned. Since the condonation of delay is not granted, the Appeal filed is not maintainable on technical grounds. Under the admitted circumstances, in the present case, the Appellant has failed to substantiate that there was sufficient cause for not filing the appeal within the prescribed time frame and has as such failed to explain the unreasonable delay of 3636 days satisfactorily. Therefore, the delay in filing the appeal is not condoned.
Accordingly, the appeal of the appellant is treated as dismissed.”
6. Aggrieved from that order of Ld. CIT(A), the assessee is in appeal before this tribunal therein that Ld. CIT(A) should have condoned the delay CIT(A), ld. AR of the assessee relied upon the following affidavit signed by the Account Officer (O & M) of the assessee company.
Ld. AR of the assessee stated that in past the assessee never ever received any such order which was alleged to have been passed on 12th March, 2014 and therefore, when the same was not served to the date is considered then there is no delay as alleged. This fact is duly recorded in the affidavit so placed on record stating that date of service of order on the e-mail. Considering that overall aspect of the matter, ld. AR of the assessee prayed to condone the delay and consider the merits of the dispute.
On the other hand, Ld. DR representing the revenue has filed a detailed report of Ld. AO stating that the orders under dispute were sent through e-mail of the assessee registered by themselves. The report of AO in the matter reads as under:-
“Respected Sir, Sub: Appeal matter pending before the Hon'ble ITAT, Jaipur in the case of Ajmer Vidyut Vitran Nigam Ltd., Bhupal Sagar (TAN-JDHA02702A) V/s ITO-TDS, Chittorgarh to 1509/JPR/2024 A.Y. 2013-14 and 2014-15 - reg. ************************ Kindly refer to the subject cited above, whereby detailed report in the case of Ajmer Vidyut Vitran Nigam Ltd., Bhupal Sagar (TAN-JDHA02702A) for A.Y. 2013-14 & 2014-15 was called for from this office.
In this regard, the point wise detailed report is submitted as under:- (i) Whether intimation notice u/s 200A/206CB which was passed on 12.03.2014 was generated and was sent to assessee through e-mail: Yes, as per traces portal, following intimations were generated and sent by the CPC - TDS (Copy of screenshot enclosed). Details of such intimations are as under: Α.Υ. 2013-14 (F.Y. 2012-13)
Type of Quarter Date of E-MAIL ID of Deductor Delivery statement processing & status of intimation Email Regular Q1 12-Mar-2014 jainnileshca@yahoo.co.in Sent Regular Q2 12-Mar-2014 jainnileshca@yahoo.co.in Sent Regular Q3 12-Mar-2014 jainnileshca@yahoo.co.in Sent Regular Q4 12-Mar-2014 jainnileshca@yahoo.co.in Sent Regular Q4 11-Mar-2014 jainnileshca@yahoo.co.in Sent
AY 2014-15 (F.Y 2013-14) Type of Quarter Date of E-MAIL ID of Deductor Delivery statement processing & status of intimation Email Regular Q2 12-Mar-2014 ashokbg69@gamil.com Sent
(ii) Whether any notice was sent by the department to the assessee as he has mentioned that he had received the intimation only on 19.03.2024: Apart from the above intimations, following consolidated demand notices (copy enclosed) had also been sent to the assessee by this office on the email address jainnileshca@yahoo.co.in, details of which are as under:
Date of Demand Notice Date of notice sent Email address, on which such through E-mail notices had been sent 29.10.2024 29.10.2024 jainnileshca@yahoo.co.in 18.07.2022 18.07.2022 jainnileshca@yahoo.co.in 12.04.2022 12.04.2022 jainnileshca@yahoo.co.in 22.02.2022 22.02.2022 jainnileshca@yahoo.co.in (iii) Submit TRACES records and supporting documents and concerned e- mail id of the assessee on which notice was sent: TRACES records and supporting documents are enclosed herewith. The email id, on which intimations & demand notices were sent, is jainnileshca@yahoo.co.in & ashokbg69gmail.com as mentioned above.
8. Ld. DR relied on the above report and submitted that the order were served upon the assessee and thereby supported the finding so recorded in the order of the ld. CIT(A), praying not to condone the delay. on record. The bench noted that apple of discord in this case is that whether the intimation issued to the assessee on 12th March, 2014 generated under the provisions of section 200A/206CB of the Act, was alleged to have been served to the assessee or not and even if that is consider that intimation was invalid or not.
First, we deal with the aspect of the delay as contended by the assessee in this appeal contended that order under dispute was never received / sent on email of the assessee or even other wise the same sent on email same had gone to spam folder and thereby remained unattended.
This fact has been disclosed by the authorized signatory on affidavit and even the revenue thereafter has not reminded for the said orders and therefore, considering the facts affirmed in the affidavit we condone the delay in filling the present appeal as the assessee was prevented from sufficient reasons and considering the decision of apex court in the case of CIT Vs. Vatika Twonship (P) Ltd., 49 taxmann.com 249 and another decision of the apex court in the case of Collector, Land & Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) wherein the court has directed to take lenient view of the matter as the assessee is at risk of not filling the appeal on time and we not that on being aware the assessee has filed the appeal the delay of 3636 days before Ld. CIT(A).
Now coming to the fact of the case bench noted that the intimation u/s 200A/206CB was issued on 12.03.2014 levying a fee of Rs. 58,100/- u/s 234E of the Act, for the alleged delay in filing quarterly statement of TDS in Form No. 24 for the 2nd quarter of Financial Year 2012-13 that intimation issued by AO TDS CPC was having date before 01.06.2015 and power to charge/collect fees u./s 234E of the Act for issuing the intimation u/s 200A came into Act, Vide Finance Act, 2015 w.e.f 01.06.2015. Therefore, the intimation so issued in the case of the assessee before 01.06.2015 is required to be held bad in law and against the provisions of the Act. To support this view of the matter, Ld. AR of the assessee supported the judicial precedent in their written submission: • Shri Fatheraj Singhvi & ORS. (Writ appeal no. 2663-2674/2015(T-IT) 73 taxmann.com 252 (Kar. H.C.) • Gajanan Construction v/s DCIT (73 TAXMANN.COM 380) ITAT Pune. • Dhanlaxmi Developers vs. DCIT (ITA No. 2888 to 2891/AGD/2015) (ITAT Ahd.)
On the other hand, Ld. DR relied upon the orders of lower authorities.
Even on merits ld. DR stated that the levy is as per provisions of section 234E of the Act and thus required to be sustained. on record. The bench noted that in this case the dispute is relating to the levy of fees of Rs. 58,100/- as per provisions of section 234E of the Act, which was passed by an order dated 12th March, 2014 by the referring to provisions of section 200A/206CB of the Act. The bench noted that power to levy such fees were came into existence by an amendment made by Finance Act, 2015 w.e.f 01.06.2015. Therefore, the order of levy fees from the assessee was not in accordance with law. The similar view has been taken by the Co-ordinate Bench of Jaipur Benches wherein such levy has been quashed by passing detailed order which has been relied upon by the Ld. AR of the assessee while arguing the case. The relevant observations of the Co-ordinate Bench in the case of M/s Mentor India Limited vs. DCIT dated 16.12.2016 reads as under :
We have heard the rival contentions of both the parties, perused the material available on the record and also gone through the orders of the authorities below. Recently the Coordinate Bench of Jaipur ITAT in the case of M/s. Sandeep Jhanwar Advisory Services Pvt. Ltd. Vs. The TDS CPC, Gaziabad in & 723/JP/2016 for the A.Y. 2013-14 / Q-3 & 4 has allowed the appeal of the assessee by observing as under:- “3.5. We have heard rival contentions, perused the material available on record and gone through the orders of the authorities below. We have also gone through the case laws relied upon by the ld. Counsel. We find merit into the contention of ld. Counsel that he jurisdictional High Court has decided the validity of section 234E, but has not decide the issue of power of AO for levy of tax under section 234E in the judgment rendered in the case of M/s. Dundlod Shikshan Sansthan and Others (supra) as relied by ld. CIT (A). We have considered the recent decision of Hon’ble Karnataka High Court in the case of Shri Fatheraj Singhvi & Ors (supra) wherein the issue of levy of fees u/s 234E on statements processed to 1513/JP/2024 Ajmer Vidyut Vitran Nigam Limited u/s 200A before 01.06.2015 has been categorically discussed by the Hon’ble High Court and in para 24 of the said order it was held that “no demand for fee u/s 234E can be made in intimation issued for TDS deducted u/s 200A before 01.06.2015”. We have also gone through the judgment of Hon’ble Supreme Court in the case of CIT vs. Vatika Township Pvt. Ltd. (supra) wherein the Hon’ble Apex Court has discussed in detail the general principle of concerning retrospectively and held that unless contrary intention appears, a legislation is presumed not to have a retrospective operation. Respectfully following the above judgments of Hon’ble Supreme Court and Hon’ble Karnataka High Court, we set aside the order of ld. CIT (A) and direct the AO to drop the demand raised of Rs. 4,200/- u/s 234E on statements processed u/s 200A before 01.06.2015. Thus grounds raised by the assessee are allowed.” The Hon’ble Jurisdictional High Court in the case of Dundlod Shikshan Sansthan Vs. Union of India (supra) has decided the issue of vires of Section 234E of the Act. The Hon’ble Karnataka High Court in the case of Fatheraj Singhvi & ors. Vs Union of India & Ors. (supra) has held that the demand U/s 200A for computation and intimation for the payment of fee U/s 234E could not be made in purported exercise of power U/s 200A for the period of the respective assessment years prior to 1st June, 2015. When the intimation of the demand notices U/s 200A is held to be without authority of law so far as it relates to computation and demand of fee U/s 234E, the question of further scrutiny for testing the constitutional validity of Section 234E would be rendered as an academic exercise. We find that the Hon’ble Jurisdictional High Court in the case of Dundlod Shikshan Sansthan Vs. Union of India (supra) has also considered the decision of the Hon’ble Bombay High Court in the case of Rashmikant Kundalia Vs. Union of India (2015) 229 Taxman 596 wherein the Hon'ble High Court has decided the nature of demand. The Hon'ble High Court has held that Section 234E of the Act is not punitive in nature but a fee which is a fixed charge for the extra service which the department has to prove due to the late filing of the TDS statements. Hence from both the decisions relied upon by the ld. DR, the issue of power of imposing late fee is not decided but the Hon’ble Karnataka High Court in the case of Fatheraj Singhvi & ors. Vs. Union of India & Ors. (supra) has decided the issue in favour of the assessee and held that the late fee U/s 234E of the Act has raised vide impugned demand notice U/s 200A of the Act. We find force in the contention of the ld. AR of the assessee. If there is conflicting views taken by the two Hon'ble Courts, then the view, which favours the assessee should be adopted. In this regard, the ld AR of the assessee has relied on the decision of the Hon'ble Supreme Court in the case of CIT Vs. Vatika Township P. Ltd. (2014) 367 ITR 466 (SC). In view of the decision of the Hon'ble Supreme Court in the case of CIT Vs. Vatika Township (supra), the demand so raised are directed to be deleted.
Similarly identical findings have also been given in all the appeals of other assessment years.”
On being consistent to the finding so recorded by the Co-ordinate Bench, we find no merit to sustain the levy as per provisions of section 234E of the Act and thereby and the same is quashed.
In the results, the appeal of the assessee in stands allowed.
The facts of the case in to 1513/JP/2024 are similar to the facts of the case in and we have heard both the parties and persuaded the materials available on record. The bench has noticed that the issues raised by the assessee in these appeal No. 1507 to 1513/JP/2024 are equally similar on set of facts and grounds. Therefore, it is not imperative to repeat the facts, various grounds and arguments raised by both the parties. Hence, the bench feels that the decision taken by us in Vidyut Vitran Nigam Limited in to 1513/JP/2024.
Nos. 1507 to 1513/JP/2024 are also allowed.
Order pronounced in the open court on 25/02/2025.
Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:-25/02/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Ajmer Vidyut Vitran Nigam Limited, Bhupalsagar izR;FkhZ@ The Respondent- ITO (TDS), Chittorgarh 2. vk;dj vk;qDr@ The ld CIT 3. 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZ QkbZy@ Guard File (ITA Nos. 1506 to 1513/JP/2024) 6. vkns'kkuqlkj@ By order,
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