TDS Return Late Fees u/s 234E cannot be levied in cases wherein defaults were prior to 01.06.2015: ITAT

Income Tax Appellate Tribunal (ITAT) in the matter of Om Prakash & Sons vs ITO held that 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.

The issue pertains to the levy of fee u/s 234E for the A.Y. 2013-14, 2014-15, and 2015-16. It was noted that the amendment in Income Tax has been brought w.e.f. 01.06.2015.

Here in ITAT referred to the decision of the Co-ordinate Bench of ITAT in ITA No. 1361/Del/2021 vide order dated 25.02.2022 to decide the matter. Relevant Extract is given below:

“Per Dr. B. R. R. Kumar, Accountant Member:

All the above-mentioned cases deal with the similar issue involving varying amounts, hence are being adjudicated by a common order.

2. The ACIT/ ITD( TDS- CPC) issued notice for payment of late fee u/ s 200A of the Income Tax Act, 1961 for delay in filing of quarterly TDS statement for fourth quarter for the financial years 2013- 14 & for all the quarters of F. Y. 2014- 15 and in all the cases for the quarter ending prior to 01. 06. 2015.

3. The First Appellate Authorities have held that the fee was leviable u/ s 200A for filing of returns.

4. The provisions of 200A( 1)( c) inserted by the Finance Act 2015 w. e. f. 01. 06. 2015 reads as under:

“200A. (1) Where a statement of tax deduction at source or a correction statement has been made by a person deducting any sum ( hereafter referred to in this section as deductor) under section 200, such statement shall be processed in the following manner, namely:—

(a) ) the sums deductible under this Chapter shall be computed after making the following adjustments, namely:—

(i)) any arithmetical error in the statement; or

(ii)) an incorrect claim, apparent from any information in the statement;

(b)) the interest, if any, shall be computed on the basis of the sums deductible as computed in the statement;
(c)) the fee, if any, shall be computed in accordance with the provisions of section 234E;”

5. In the absence of any machinery provisions to charge the late fee u/ s 200A, the issue of levy of fee u/ s 234 E which was introduced w.e. f. 01. 06 .2015 has been examined in the context of its applicability whether retrospective or prospective.

6. The Hon’ble Karnataka High Court in case of Fatehraj Singhvi & Ors. vs. UOI & Ors. 2016 ( 9) TMI 964 is in favor 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.

7. At the same time, the Hon’ble Gujarat High Court in the case of Rajesh Kourani vs. UOI ( 2017) 83 taxman.com 137 has decided the issue against the assessee.

8. 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 favor of the assessee should be followed is relevant to the 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.

9. As a result, the fee levied u/ s 234E is hereby ordered to be deleted.

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