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Income Tax Appellate Tribunal, PUNE BENCHES “A” :: PUNE
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This is an appeal filed by the assessee against the order of ld.Commissioner of Income-tax(Appeals)[NFAC] dated 29.02.2024 for the A.Y.2013-14(Q4). The Assessee has raised following grounds of appeal :
1. The TDS Return was Filed on 26-Sep-2013 and The Intimation under Sec 200 A was Passed on 16-Oct-2016 . An intimation under section 200A raising the demand or directing a refund to the tax deductor could be passed within one year. So the Intimation u/s 200 A is Time Barred. for A.Y.2013-14(Q4) Dr.Khanade Hospital [A]
As the TDS Return was Filed on 26-Sep-2013 and the FY is 2012/13, the Provisions of Section 234 E Were not Applicable to the said TDS Return. The Provisions of Sec 234 E Cannot be Applied for a Period Before 1 June 2015. The Assessee Relies on Pune ITAT Decisions in (a) Envision-Landmarks-LLP-Vs-TDS -ITAT-Pune (ITA Nos.404 to 406/PUN/2023) (b) M.E.S.-High- School-Vs-ITO-ITAT-Pune (ITA Nos.96 & 97/PUN/2.
Any Other Relevant Ground Emerging during the course of Appellate Proceedings.” 2. At the time of hearing, no one appeared on behalf of the assessee. Findings &Analysis : 2.1 The issue involved in this case is whether late fee under section 234E can be levied for F.Y.2012-13. This issue is covered in favour of the assessee. The ld.CIT(A) in para 8 of the order, upheld the order levying late fee under section 234E following decision of the Hon’ble Gujarat High Court in the case of Rajesh Kourani 83 taxmann.com 137. 2.2 We are aware of the fact that there are contrary decisions on this issue. The Hon’ble Karnataka High Court in Fatheraj Singhvi Vs. Union of India 289 CTR 0602(Kar) held in favour of assessee as under : “23. 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 for A.Y.2013-14(Q4) Dr.Khanade Hospital [A] prior to 1.6.2015 can be said as without any authority under law. Hence, the same can be said as illegal and invalid.
………………..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.”
2.3 The decision of the Hon’ble Karnataka High Court was followed by the Hon’ble Kerala High Court in the case of Olari Little Flower Kuries (P.) Ltd., Vs. Union of India [2022] 134 taxmann.com 111 (Kerala).
2.4 No direct decision on the impugned issue of the Hon’ble Jurisdictional High Court has been brought to our notice. In these facts and circumstances of the case, when there are contrary decisions of different Hon’ble High Courts, in the absence of decision of Hon’ble Jurisdictional High Court, the decision which is favourable to the assessee needs to be followed; as observed by the Hon’ble Supreme Court in the case of CIT Vs. Vegetable Products Limited [1973] 88 ITR 192 (SC). The decision of for A.Y.2013-14(Q4) Dr.Khanade Hospital [A] Hon’ble Karnataka High Court(supra) was followed by ITAT Pune Bench in the case of Medical Superintendent Rural Hospital, vs. DCIT, CPC(TDS) [2018] 100 taxmann.com 78. 2.5 In this case, Late Fee under section 234E has been levied for F.Y.2012-13. Admittedly, assessee had filed TDS Return on 26.09.2013 which is before 01.06.2015. Therefore, respectfully following the Hon’ble Karnataka High Court, Hon’ble Kerala High Court and ITAT Pune Bench(supra) it is held that Late Fee levied under section 234E in the case of the assessee for the period prior to 01.06.2015 is bad-in-law. Accordingly, the Assessing Officer is directed to delete the said Late Fee levied under section 234E of the Act. Accordingly, Grounds of appeal raised by the assessee are allowed.