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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI V. DURGA RAO & SHRI K.M. ROY, ACCOUNTANT, MEMBER
Date of Hearing – 16/05/2024 Date of Order – 16/05/2024
O R D E R PER V. DURGA RAO, J.M.
The instant appeals has been filed by the assessee challenging the impugned orders of even date 22/12/2022, passed under section 250 of the Estate Officer Principal Chief Conservator of Forest ITA no.134144/Nag./2023 Income Tax Act, 1961 ("the Act") by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [“learned CIT(A)”], for the assessment year 2015-16, 2016-17, 2018-19, 2018-19, 2018-19, 2018-19, 2019-20, 2019-20, 2019-20, 2019-20 and 2020-21 respectively.
When the appeal was called for hearing neither the assessee nor anyone was present on behalf of the assessee to represent the case. However, the appellant, by way of a letter dated 06/05/2024, requested the Bench to decide its appeal based on the facts of the case on merits. Thereafter, we proceed to dispose off the appeals on merit and after hearing the learned Departmental Representative and on the basis of material available on record.
3. During the course of hearing, the Registry has pointed out that there is a delay of 85 days in filing the present appeals. The appellant had filed an Affidavit seeking condonation of delay, the contents of which are reproduced below for ready reference:–
“We enclose herewith an appeal under section 253(1) of the Income Tax Act, 1961, against order of the Commissioner (Appeals), NFAC, Delhi relating to the Assessment Year 2016-17 made under section 250 of the Act on 22/12/2022, which was communicated to us on the 22/12/2022 via E-mail. Though this appeal should have been filed in the office of the Honorable Tribunal on or before 21st February 2023, counting the period of sixty days from the date of communication of the order but is count not be so filed because the case is of department of state government. As per the procedure of Government regulation, for any proceeding requiring appeal to the authority an approval is to be taken from the respective state head. Also, since the amount required to file the appeal is to be allotted from the consolidated fund of India, approval is required to allocate the funds. The process of taking approvals from respective office has taken time resulting in delay in filing appeal before your honour. The litigant being a office of state Government does not stand to benefit by filing an appeal late. Refusing to condone delay can result in an meritorious matter being ignored and cause of justice being defeated. Page | 2
Estate Officer Principal Chief Conservator of Forest ITA no.134144/Nag./2023
We therefore, pray that the delay in filing the appeal should be condoned under section 253(5) of the Income Tax Act, 1961, and the appeal should be treated as filed within the allowed time and oblige. We request you to kindly take the appeal on record.”
On the other hand, the learned Departmental Representative did not raise any serious objection.
Having perused the material available on record as well as the affidavit filed by the appellant, we are of the opinion that the appellant was prevented by sufficient cause to file appeal belatedly and consequently, we hereby condone the delay of 85 days in filing the present appeal and proceed to adjudicate upon the same.
Since all these appeals pertain to the same assessee involving common issues arising out of exactly identical set of facts and circumstances, except variation in numerical figures, therefore, as a matter of convenience, these appeals were heard together and are being disposed off by way of this consolidated order. However, in order to understand the implication, it would be necessary to take note of the facts of one appeal. We are, accordingly, narrating the facts, as they appear in the appeal in ITA no.134/Nag./2023, for assessment year 2015–16, the decision of which will apply to the other appeals mutatis–mutandis. ./2023 Assessee’s Appeal – A.Y. 2015-16
In its appeal, the assessee has raised following grounds:–
Estate Officer Principal Chief Conservator of Forest ITA no.134144/Nag./2023 “1. The learned CIT(A) erred in passing an appellate order against the assessee without going through the submissions made by the appellant.
2. That the learned AO had erred in levying a late fees of Rs. 27,000/- under section 234E of the Act in the intimation issued under section 200A of the Act.
That the intimation issued under section 200A of the Act imposing late fees under section 234E has to be unjustified and unwarranted and needs to be quashed when read with Section 234E of the Act.
4. The learned AO has erred in raising demand on account of interest on payments under section 220(2) of Rs. 20,250/-.
5. The Appellant prays leave of the Hon'ble Tribunal to add, amend, alter any of the Grounds of Appeal.”
Insofar as the merit of the case is concerned, the only issue arose out of the above grounds of appeal is, whether or not the Assessing Officer was justified in levying late fee under section 234E of the Act on account of late payment of fee for the period after 1st June 2015.
The Assessing Officer levied late fee under section 234E of the Act towards delayed submission of TDS return.
On appeal, the learned CIT(A) has considered the issue and he passed the impugned order by confirming the order of the Assessing Officer stating that after 1st June 2015, late fee can be levied under section 234E for late filing of appeal. The relevant portion of the observations of the learned CIT(A) dismissing the appeal of the appellant is reproduced below:-
“6.3. I have carefully considered the facts of the case and various judicial pronouncements. The fact of this case is that the appellant has filed first Quarterly Statement related to period after 01.06.2015 after prescribed due date. The Assessing Officer while processing the TDS statements for the period after 01.06.2015, was empowered to charge fees under section 234E of the Act. Hence, the demand raised by way of charging the fees under section 234E of the Act is valid and the same is Page | 4
Estate Officer Principal Chief Conservator of Forest ITA no.134144/Nag./2023 sustainable. Addition made is confirmed. All the Grounds of Appeal on one sole issue are dismissed.”
The learned Departmental Representative vehemently supported the order of the authorities below.
We have heard the argument of the learned Departmental Representative and perused the material available on record and gone through the orders of the authorities below. We find that the levy of late fees under section 234E of the Act has come into force w.e.f. 1st June 2015, which is prospective in nature. However, in the appeal before us, the late fee is pertaining to the period after 1st June 2015. In this regard, it is relevant to note the order of the Co-ordinate Bench of the Tribunal, Nagpur, in DIGP Group Centre CROF, D/o The Office of the DIGP Group Centre v/s DCIT, to 309/ Nag./2022, order dated 18/07/2023, wherein identical issue has been decided by the Tribunal in favour of the Revenue by dismissing the appeal of the assessee relating to the period after 1st June 2015. The relevant portion of the findings of the Tribunal is extracted below for better appreciation of the facts:-
“3. At the outset, the Hob’ble Jurisdictional High Court in the case of Shri Rashmikantr Kundalia and Others v. Union of India, 373 ITR 268 (Bom.) while adjudicating the constitutional validity of the provisions of section 234E of the Act observed that the provisions of section 234E empowering the Assessing Officer to levy late fee for the delay or failure to deliver or cause to be delivered return/statements of tax deducted or collected at source within the prescribed time limit under the provisions of sub-section (3) of section 200 of the Act, the fee is held to be not punitive, but a fee which is fixed charge for the extra service, which the Department has to provide due to late filing of the return/statements of tax deducted or collected at source. The fee sought to be levied u/s 234E is not in the guise of tax or penalty. The provisions of section 234E does not empower the Assessing Officer to condone the delay in late filing of the return/statements of tax deducted or collected at source nor the appeal is provided from an arbitrary order passed u/s 234E of the Act. In Page | 5
Estate Officer Principal Chief Conservator of Forest ITA no.134144/Nag./2023 such a scenario, the levy of late fee u/s 234E is automatic, no appeal lies. Accordingly, the appeals filed by the assessee stand dismissed.”
Consequent upon following the aforesaid decision of the Tribunal and consistent with the view taken therein, we hold that the Assessing Officer has rightly imposed the late fee which was confirmed by the learned CIT(A) as well. Accordingly, for the reasons set out above, we see no infirmity in the impugned decision of the Assessing Officer warranting interference at the instance of the appellant. The order of the learned CIT(A) is upheld by dismissing the grounds of appeal raised by the appellant.
In the result, appeal filed by the assessee being ITA no.134/Nag./2023 is dismissed. to 144/Nag./2023 Assessee’s Appeal
The issue raised in all these appeals is identical to the issue decided by us in the aforesaid appeal being ITA no.134/Nag./2023, wherein we have decided the issue in favour of the Revenue and against the assessee for the reason stated above. Moreover, since the issue for our adjudication is squarely covered by the aforesaid decision of this Tribunal rendered in DIGP Group Centre CROF (supra), consistent with the view taken therein, we uphold the order passed by the learned CIT(A) by dismissing the grounds of appeal raised in all the appeals.
Estate Officer Principal Chief Conservator of Forest ITA no.134144/Nag./2023
In the result, all the assessee’s appeals being 144/Nag./2023, are dismissed.
Order pronounced in the open Court on 16/05/2024