PRIYADARSHINI KANYA VIDYALAYA,GHUGHUS vs. ITO,TDS WD.-52, CHANDRAPUR
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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI V. DURGA RAO & SHRI K.M. ROY, ACCOUNTANT, MEMBER
IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR
BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI K.M. ROY, ACCOUNTANT, MEMBER
ITA no.50/Nag./2024 (Assessment Year : 2014–15) Priyadarshini Kanya Vidyalaya Ghughus Ghughus, Chandrapur 442 505 ……………. Appellant PAN – NGPP01116D v/s Income Tax Officer ……………. Respondent Ward–52(3), Chandrapur Assessee by : Shri Mohammed A. Lakkadsha Revenue by : Shri Rajat Singhai
Date of Hearing – 26/06/2024 Date of Order – 26/06/2024
O R D E R PER V. DURGA RAO, J.M.
The present appeal has been filed by the assessee challenging the impugned order dated 29/11/2023, passed by the learned Commissioner of Income Tax (Appeals), Delhi, [“learned CIT(A)”], for the assessment year 2014–15.
The assessee has raised following grounds in its appeal:–
“Based on the facts and circumstances of the case, the Appellant respectfully submits Commissioner of Income Tax (Appeals), NFAC ('the learned CIT-A') erred in sustaining Late fees levied u/s 234E for TDS Statement of the Appellant for assessment year ('A.Y.') 2014-15, ITO-NGPWT52(3), Chandrapur ('the learned Assessing Officer') on the following grounds: 1. The Learned CIT-A erred on the facts and in circumstances of the case by endorsing and confirming the order of the learned Assessing officer, raising
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the demand for late filing of TDS statement u/s 234E which is not an enabling provision in itself, hence bad in law. The Appellant prays order should be annulled and demand be deleted. 2. The Learned CIT-A erred on the facts and in circumstances of the case by endorsing the view of the learned AO and not relying on the latest judicial binding precedence of jurisdictional bench of ITAT, Nagpur, instead relying on non-applicable/ non- jurisdictional judicial precedence, thereby violating the doctrine of Judicial precedence. The Appellant prays order should be annulled and demand be deleted. 3. The Learned CIT-A erred on the facts and in circumstances of the case by failing to appreciate the facts of case and concluding the order based on constitutional validity of sec 234E, which was not a ground of the appeal itself. The Appellant prays order should be annulled and demand be deleted. 4. The above ground is independent and without prejudice to the other grounds of appeal preferred by the Appellant. 5. The Appellant craves leave to add, alter, vary, omit, amend or delete one or more of the above grounds of appeal at any time before, or at the time of, hearing of the appeal, to enable the learned Commissioner of Income-tax (Appeals) to decide this appeal per law.”
The only issue which arose out of the aforesaid grounds of appeal relates to levying of late fee under section 234E Income Tax Act, 1961 ("the Act") for the delay in filing the TDS return raising a demand of ` 1,58,000.
In this case, the assessee is an Educational Institution known as Priyadarshini Kanya Vidyalaya Ghughus entrusted by the Government. The deduction is paid through challan submitted by the assessee in Bank. The Assessing Officer found that though the tax was duly deducted and timely paid the quarterly statement of tax deduction under section 200(3) of the Act was submitted belatedly, as due to non–availability of human resource quarterly ETDS return (24Q) was submitted belated. The explanation of the assessee was that the delay was not intentional but purely attributable to
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resources crunch which act as bottleneck. However, the Assessing Officer raised a demand of ` 1,58,000, for the delay in filing the TDS return. Aggrieved, the assessee carried the matter in appeal before the learned CIT(A).
The learned CIT(A) confirmed the order passed by the Assessing Officer by dismissing the appeal of the assessee while observing as follows:–
“5.8 In view of above judicial pronouncements, it is very clear that the demand raised for levy of 234E for the period prior to 01.06.2015 is very well valid and the levy of late fee under section 234E of the Act cannot be assailed. There is no infirmity in the order of the AO and accordingly in view of the legal judgements as mentioned above and facts of the case and as per the provisions u/s 234E of the Act, the late fee charged u/s 234E in the case of appellant is upheld. Thus, the ground no 1 of appeal is dismissed.”
The assessee being aggrieved, is in further appeal before the Tribunal.
We have heard the arguments of the rival parties, perused the material available on record and gone through the orders of the authorities below. In the present case, the Assessing Officer has levied late fee under section 234E of the Act for the assessment year under consideration. The amendment to the provisions of section 200A of the Act came into effect from 1st June 2015. The Co–ordinate Bench of the Tribunal, Chennai Bench, Chennai, in S.S.S. Construction v/s ACIT, ITA no. 3495 to 3504/Chny./2019, A.Y. 2013-14 to 2015-16 order dated 22/04/2022, has considered this issue by following the judgment of the Hon’ble Karnataka High Court in Fatehraj Singhvi v/s Union of India, [2016] 289 CTR 602 (Kar.) and also considered the judgment of the Hon’ble High Court in Olari Little Flower Kuries Pvt. Ltd. v/s Union of India, [2022] 134 taxmann.com 111 (Ker.) holding that the intimation issued by the
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Assessing Officer under section 200A of the Act to levy late fee for belated returned filed for the period prior to 1st June 2015 is invalid. Relevant portion, vide Para–4 of the order dated 22/04/2022 (supra), is extracted below:–
“4. None appeared for the assessee. We have heard learned DR and perused orders of the authorities below. We find that the learned CIT(A) has disposed off appeals filed by the assessee on technical grounds without condoning delay in filing appeals, although, the assessee has filed petition for ITA No. 3495 to 3504/Chny/2019 condonation of delay. We find that the issue involved in the present appeals filed by the assessee is on levy of late fee u/s.234E of the Act, for belated filing of quarterly TDS returns beyond prescribed date and this issue is covered by various decisions of the Tribunal and High Courts, including decision of the co-ordinate Bench of ITAT., Chennai. The Tribunal in the case of M/s. M.F. Textiles Pvt.Ltd. Vs. ACIT in ITA Nos. 578 & 579/Chny/2021 dated 24.02.2022 had considered an identical issue in light of provisions of section 234E of the Act and also amendment to section 200A by Finance Act, 2015 w.e.f. 01.06.2015 and held that in absence of enabling provision u/s.200A of the Act, the Assessing Officer cannot levy late fee u/s.234E of the Act for belated filing of quarterly TDS return for period prior to 01.06.2015. The relevant findings of the Tribunal in ITA Nos.578 & 579/Chny/2021 dated 24.02.2022 are reproduced as under:- " 5. We have heard both the parties, perused the materials available on record and gone through the orders of authorities 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. ITA No. 3495 to 3504/Chny/2019 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) did not entertain the appeal filed by the assessee on both counts, including on limitation in filing the appeal as well as on merits of the issue and rejected the arguments taken by 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 Page | 4
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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 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 ITA No. 3495 to 3504/Chny/2019 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. 6. 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 v. 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 2014-15. Since, late fee charged in the present case pertaining to the financial year 2013-14, we direct the Assessing Officer to delete the 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. 7. In the result, both these appeals filed by the assessee are allowed."
We find that the above decision of the Co-ordinate Bench in S.S.S. Construction (supra) is squarely applies to the assessee’s case. Apart from this, the issue is also decided by the Co-ordinate Bench of the Tribunal, Nagpur Bench, in Bank of India v/s ACIT, ITA no.104/Nag./2022, etc., order dated 06/06/2022, wherein the Tribunal, Nagpur Bench, Nagpur, has decided Page | 5
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the very same issue in favour of the assessee. In view of the above, we are of the opinion that the impugned orders passed by the learned CIT(A) for all the assessment years under consideration deserve to be reversed. Consequently, the impugned order passed by the learned CIT(A) for the year under consideration is hereby set aside and the grounds raised by the assessee in this appeal are allowed.
In the result, appeal filed by the assessees are allowed. Order pronounced in the open Court on 26/06/2024
Sd/- Sd/- K.M. ROY V. DURGA RAO ACCOUNTANT MEMBER JUDICIAL MEMBER NAGPUR, DATED: 26/06/2024
Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Nagpur; and (5) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Sr. Private Secretary ITAT, Nagpur
