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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA Nos.150 & 151 /CTK/2016 Assessment Years: 2013-14 &2014-15
Latest Generation Vs. DCIT, Central Processing Entertainment Pvt Ltd., C/O. Cell_TDS, TDS CPC, Aayakar Hotel Triple C, Buxi Bazar, Bhavan, Sector-3, Vaishali, Cuttack Gaziabad, U.P. 201010 PAN/GIR No.BBNLO 0331 C (Appellant) .. ( Respondent)
Assessee by : Shri P.K.Mishra, AR Revenue by : Shri D.K.Pradhan, DR
Date of Hearing : 24/08/ 2017 Date of Pronouncement : 28 /08/ 2017
O R D E R Per N.S.Saini, AM
These are appeals filed by the assessee against the separate orders
of the CIT(A)- Cuttack both dated 25.1.2016 for the assessment years
2013-14 & 2014-15.
In both the appeals, the grievance of the assessee is that the
CIT(A) erred in confirming the levy of fees for late filing of TDS return
under section 234E of the Act.
The brief facts of the case are that for the financial year 2012-13,
there was admittedly a delay in filing of the TDS returns and during the
processing of the TDS return, the Assessing Officer (TDS) raised a
demand, by way of intimations issued under section 200A of the Act, for
2 ITA Nos. 150 & 151 / CTK/ 2016 Asse ssment Years: 2 01 3-1 4 &2 014 -15
levy of fees under section 234 E for delayed filing of TDS statement of for
the quarter -2, Quarter -3 and Quarter -4 amounting to Rs.49,070/-.
Similarly, for the financial year 2013-14, for the 1st quarter, there 3.
was admittedly a delay in filing of the TDS returns and during the
processing of the TDS return, the Assessing Officer (TDS) raised a
demand, by way of intimations issued under section 200A of the Act, for
levy of fees under section 234 E for delayed filing of TDS statement of
Rs.9,800/-.
4.. On appeal, the CIT(A) upheld the action of the DCIT (TDS), (CPC),
Bangalore by observing as under:
“The provisions of section 234 E was always there for levy of fees for late filing of TDS return. It is a fact that section 234 E was made a part of amended section 200 A w.e.f. 1st June, 2015. But the fact still remains that late filing fee u/s.234 E is leviable and in the present case, the same have been levied. Writing it under the section 200 A does not change the nature of requirement of levy of late filing fee u/s. 234 E of the Act. I, therefore, am unable to agree with the contention of the appellant.” 5. Before us, ld A.R. of the assessee filed an order of this Bench of the
Tribunal in the case of Gyanaranjan Ray vs ITO (TDS), Cuttack in ITA
Nos. 314 to 316/CTC/2014 for assessment year 2013-14 and ITA No.317
to 318/CTCK./2016 for assessment year 2014-15, order dated 15.2.2017
and submitted that this issue is covered in favour of the assessee, which
fact has not been controverted by ld D.R.
We have heard the rival submissions, perused the orders of lower
authorities and materials available on record. We find that on similar
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issue, this Bench of the Tribunal has deleted the levy of fee u/s.234 E of
the Act in the above stated case, observing as under:
“We have heard both parties and perused the records. We find that the only issue permeating from all the 5 appeals is regarding imposition of levy of fee for late filing TDS return u/s 234E of the Act, while processing the statements furnished by the assessee u/s 200A of the Act. At the outset itself, it was pointed out by the Ld. Counsel for the assessee that this issue is no longer res integra since the Hon'ble Karnataka High Court in Fatehraj Singhvi v. Union of India (289 CTR 0602) has held that w.e.f. 01.06.2015, the Parliament by way of an amendment to Section 200A of the Act, has empowered the AO to levy fee u/s 234E of the Act while processing u/s 200A of the Act. Therefore, prior to that date i.e. .2015, the AO had no authority to levy fee u/s 234E of the Act. Therefore, according to the contention of the Ld. Counsel for the assessee, that the AO erred in levying the fee u/s 234E of the Act which been wrongly confirmed by the Ld. CIT(A) and, therefore, the impugned orders of the Ld. CIT(A) need to deleted.
On the other hand, the Ld. CIT(DR) contended that the Punjab and Haryana High Court in Dr. Amrit Lai Mangal vs. Union of India 62 taxmann.com 310 (Punjab & Haryana) has taken a view which is in favour of the Revenue. On a query from the bench as to whether the jurisdictional High Court i.e. Hon'ble Orissa High Court has passed any orders in respect to the LIS before us. The Ld. DR fairly conceded that there is no order of the Hon'ble Orissa High Court on the issue in hand before us. It is well settled that when there is no order of the Jurisdictional High Court on the issue before us, the Tribunal will follow the order of the High Court which is in favour of the assessee (CIT vs. Vegetable Products Ltd. 88 ITR 192 (SC)). In such a scenario, we are inclined to follow the order of the Karnataka High Court which has been brought to our knowledge by the Ld. Counsel for the assessee.
The facts in Fatehraj Singh vs..Union of India (supra), which was decided by the Hon'ble Karnataka High Court was that for financial year 2012-13 and 2013-14, TDS was deducted by the respective assessees and deposited in the Government account. However, as per the Department, there was delay in filing the return/statement with the details of the persons from whom the TDS was deducted including the details and the persons concerned and the transactions etc. The Department issued intimation u/s 200A of the Act, calling upon the respective assessees to pay late filing fee u/s 234E of the Act in purported exercise of the power u/s 200A of the Act. The assessee challenged the levy of the fee and also the vires of the statute (Section 234E). The Hon'ble High Court did not make any finding in respect of the vires of the statute and the said issue was left open. However, the Hon'ble High Court held that prior to 01.06.2015, the AO while issuing intimation u/s 200A does not have the authority under law, to make any order u/s 243E of the Act and was pleased to delete the order of levy of late fee u/s 234E of the Act. The
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Hon'ble High Court held as follows In para 22 to 24 which is reproduced as under:
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 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.
In view of the aforesaid observation and discussion, since the impugned intimation given by the respondent-Department against all the appellants under Section 200A are so far as they are for the period prior to 1.6.2015 can be said as without any authority under law. Hence, the same can be said as illegal and invalid.
If the facts of the present cases are examined in light of the aforesaid observation and discussion, it appears that in all matters, the intimation given in purported exercise of power under Section 200A are in respect of fees under Section 234E for the period prior to 1.6.2015. As such, it is on account of the intimation given making demand of the fees in purported exercise of power under Section 200A, the same has necessitated the appellant-original petitioner to challenge the validity of Section 234E of the Act. In view of the reasons recorded by us hereinabove, when the amendment made under Section 200A of the Act which has come into effect on 1.6.2015 is held to be having prospective effect, no computation of fee for the demand or the intimation for the fee under Section 234E could be made for the TDS deducted for the respective assessment year prior to 1.6.2015. Hence, the demand notices under Section 200A by the respondent-authority for intimation for payment of fee under Section 234E can be said as without any authority of law and the same are quashed and set aside to that extent.”
We take note that the facts of the aforesaid case and the facts before us are similar. Only after 01.06.2015, the AO can levy fee under section 234E of the Act while processing the statement under section 200A of the Act and not before. Therefore, respectfully relying the order of the Hon'ble Karnataka High Court, the impugned intimation of the lower authorities levying fee under section 234E of the Act cannot be sustained in law. Accordingly the intimation under section 200A as confirmed by the Ld. CIT(A) in so far as levy of fee under section 234E is set aside and fee levied u/s 243E in all the appeals are ordered to be deleted. However, the other adjustments made by the AO in the impugned intimation shall stand as such. “
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In the present appeals before us the financial years involved are
2012-13 and 2013-14. Therefore, respectfully following the precedent, we
set aside the orders of lower authorities and delete the levy of fee u/s.234
E of the Act in all the quarters and allow the appeals filed by the
assessee.
In the result, both the appeals filed by the assessee are allowed.
Order pronounced in the open court on 28/08/2017. Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER
Cuttack; Dated /08/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Latest Generation Entertainment Pvt Ltd., C/O. Hotel Triple C, Buxi Bazar, Cuttack 2. The Respondent. DCIT, Central Processing Cell_TDS, TDS CPC, Aayakar Bhavan, Sector-3, Vaishali, Gaziabad, U.P. 201010 3. The CIT(A)- Cuttack 4. Pr.CIT- BBSR/CIT (TDS), BBSR BY ORDER, 5. DR, ITAT, Cuttack 6. Guard file. SR.PRIVATE SECRETARY //True Copy// ITAT, Cuttack