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Judgment
The captioned appeals, preferred by the assessee, are directed against separate orders of the Assessing Officer passed for levying late fee penalty u/s 234E for late filing of TDS statements for 2nd, 3rd and 4th Quarters of Form 26Q and 4th Quarters of Form 27Q and 24Q for assessment year 2014-15 and for late filing of TDS statement for 1st, 2nd and 3rd quarters of Form 26Q for Assessment year 2015-16. All these appeals are taken up together and are being disposed of by way of a consolidated order. ITA no. 7593/Del/2017 is being taken up as a leading case.
At the outset it is submitted that TDS return for F.Y. 2013-14 and 2014-15 (total no. 8) were filed late but all before 13.3.2015 and order u/s 200A charging fee u/s 234E was passed before 19.3.2015 i.e. prior to 1.6.2015. Learned counsel for the assessee drew my attention to the chart. For the sake of convenience the chart filed by the assessee is reproduced as under:
Financial year 2013-14 Asstt. Year 2014-15
Qr.
Form No.
Due Date
Date of filing
Delay
Interest paid
Late fee
charged u/s 234E
Date of order
2nd
26Q
15-10-2013
18-09-2014
338
32202
67600
23-09-2014
3rd
26Q
15-01-2014
05-11-2014
294
16466
58800
212.11.2014
4th
26Q
15-05-2014
05-11-2014
174
6752
34800
12-11-2014
4th
27Q
15-05-2014
05-11-2014
174
0
34800
12-11-2014
4th
24Q
15-05-2014
12-01-2015
242
19074
48400
16-01-2005
244400
Financial year 2014-15 Asstt. Year 2015-16
Qr.
Form No.
Due Date
Date of filing
Delay
Interest paid
Late fee
charged u/s 234E
Date of order
1st
26Q
15-07-2014
13-03-2015
241
813
11930
19-03-2015
2nd
26Q
15-10-2014
13-03-2015
149
1822
21500
19-03-2015
3rd
26Q
15-01-2015
13-03-2015
57
8343
11040
19-03-2015
44470
It is contended that under identical facts the Division Bench of this Tribunal in the case of ICMC Projects Pvt. Ltd. Vs. ITD, CPC, Bengaluru & others (ITA no. 1361/Del/2021 & others order dated 25.02.2022) has decided the issue in favour of the assessee.
Learned counsel has placed reliance on the decision of Division Bench of Indore Bench this Tribunal rendered in the case of Sukhmani Automobiles & Ors. Vs. ITO, TDS, Indore & Ors. [ ITA nos. 412, 413, 424 & 425/Ind/2019 dated 19.03.2020]; and the judgment of the Hon’ble Karnataka High Court rendered in the case of Fatheraj Singhvi and Ors. Vs. Union of India and Ors. [ Writ Appeal nos. 2663-2674/2015(T-IT) dated 16.08.2016].
Learned DR opposed the submissions and supported the orders of the authorities below.
I have heard rival contentions and perused the material available on record. I find that the Division Bench of this Tribunal under identical facts has decided the issue in a bunch matter in ITA nos. 1361/Del/2021 & others ICMC Projects Pvt. Ltd. Vs. ITD, CPC, Bengaluru, by holding as under:
“5. In the absence of any machinery provisions to charge the late fee u/s 200A, the issue of levy of fee u/s 234E which was introduced w.e.f. 01.06.2015 has been examined in the context of its applicability whether retrospective or prospective.
The Hon'ble Karnataka High Court in case of Fatehraj Singhvi & Ors. vs. UOI & Ors. 2016 (9) TMI 964 is in favour of the assessee holding that the amendments brought in statute w.e.f. 01.06.2015 are prospective in nature and as such, notices issued u/s 200A of the Act for computation and intimation of payment of late filing fee u/s 234E of the Act relating to the period of tax deduction prior to 01.06.2015 was not maintainable.
At the same time, the Hon'ble Gujarat High Court in case of Rajesh Kourani vs. UOI (2017) 83 taxmann.com 137 has decided the issue against the assessee.
Under these circumstances, we are of the considered view that the decision rendered by Hon'ble Supreme Court in the case of Vegetable products Limited 88 ITR 192 (SC) pronouncing that, when there are conflicting decisions the view taken in favour of the assessee should be owed is relevant to adjudication of the matter before us. Hence, the impugned order passed by the First Appellate Authorities confirming the late fee levied by the AO u/s 200A read with section 234E in all the cases wherein the defaults were prior to 01.06.2015 is not sustainable in the eyes of law.
As a result, the fee levied u/s 234E is hereby ordered to be deleted.”
The Revenue has not brought to my notice any other binding precedence in favour of the Revenue. Therefore, respectfully following the ratio of decision of Division Bench of this Tribunal (supra), I hereby direct the Assessing Officer to delete the impugned penalty. This finding would also apply to other appeals of this bunch (ITA nos. 7594/Del/2017 to 7600/Del/2017).
Assessee’s appeals stand allowed.