Appropriate Relief So As To Avoid Unsettling The Settled Things. Relyingupon The Decisions In State Of Maharashtra v. I Have Heard Sri.p.j.anilkumar, Learned Counsel For The

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 24 DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 WP(C) NO. 1259 OF 2022 PETITIONER: JIJI VARGHESE IV/1007, GRACE AVENUE, THANA,PUDUPARIYARAM, PALAKKAD- 678733 BY ADVS. SRI.P.J.ANILKUMAR SRI.K.N.SREEKUMARANSRI.N.SANTHOSHKUMAR RESPONDENTS: 1INCOME TAX OFFICER (TDS) AAYKAR BHAVAN, ENGLISH CHURCH ROAD, PALAKKAD, PIN - 678101PALAKKAD, PIN - 678101 2DEPUTY COMMISSIONER OF INCOME TAX TDS CPC,AAYKAR BHAVAN, SECTOR-3, VAISHALI, GAZIABAD, UTTARPRADESH - 201010 3CENTRAL BOARD OF DIRECT TAXES , NORTH BLOCK, NEW DELHI – 110002, REPRESENTED BY ITS CHAIRMAN 4UNION OF INDIA MINISTRY OF FINANCE, DIRECT TAXES DEPARTMENT, NEW DELHI, PIN – 110001 REPRESENTED BY ITS SECRETARY BY ADVS. SRI.CHRISTOPHER ABRAHAM, SC SRI.MANU.S, ASGI THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 24.03.2022, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: -:3:- BECHU KURIAN THOMAS, J. ----------------------------------------- W.P.(C) No.1259 of 2022 ---------------------------------------- Dated this the 24[th] day of March, 2021 JUDGMENT As an assessee under the Income Tax Act, 1961, petitioner haddeducted TDS for payments made by him and remitted the same tothe Income Tax Department. While filing the statement of returnsregarding the remittance of TDS, delay occurred. When the returnswere processed, the second respondent, on noticing the delay infiling the statement of TDS remittance, levied late fee under section234E of the Act. 2. By Ext.P1 to Ext.P9 intimations, petitioner was called uponto pay the late filing fee under section 234E of the Income Tax Act,1961 (for short,'the Act'). As per the aforesaid intimations, amountshave been demanded as late fee for the periods from 2012-13 to2014-15 on the basis of the provisions in section 234E of the Act,which is as follows: “234E-Fee for default in furnishing statements:- (1) Without prejudice to the provisions of the Act, where a personfails to deliver or cause to be delivered a statement within the timeprescribed in sub-section (3) of Section 200 or the proviso to sub-section (3) of section 206C, he shall be liable to pay, by way of fee, a sum of two hundred rupees for every day during which the failurecontinues.” 3. According to the petitioner, though section 234E of the Actwas introduced by the Finance Act, 2012 with effect from 1[st] July,2012, since petitioner is being demanded to pay, by Ext.P1 toExt.P9, late fee for not filing the statement of tax deduction at source,it is necessary to refer to section 200A of the Act. It was furthersubmitted that Section 200A(1) incorporated clause (c) only witheffect from 01.06.2015. Sub-clause (c) to section 200A (1) refers tothe fee if any to be computed in accordance with the provisions ofsection 200A(1)(e). It is the claim of the petitioner that till 01.06.2015petitioner cannot be mulcted with any liability to pay late fee for nonfiling of any statement of tax deduction at source. 4. A statement has been filed by the respondents objecting tothe claim of the petitioner. It is averred that the demands of late filingfee under section 234E of the Act were raised by orders issued from2013 till 2016 and that the demands are still outstanding. Theintimations issued by the department were all appealable ordersunder section 246A of the Act and the petitioner failed to challengethe levy of late fee. In such circumstances, the demands havebecome final and the petitioner has accepted the demands. W.P.(C) No.1259/22 -:5:- Respondents also pleaded that the delay is a ground to refuse an 4. A statement has been filed by the respondents objecting tothe claim of the petitioner. It is averred that the demands of late filingfee under section 234E of the Act were raised by orders issued from2013 till 2016 and that the demands are still outstanding. Theintimations issued by the department were all appealable ordersunder section 246A of the Act and the petitioner failed to challengethe levy of late fee. In such circumstances, the demands havebecome final and the petitioner has accepted the demands. W.P.(C) No.1259/22 -:5:- Respondents also pleaded that the delay is a ground to refuse an appropriate relief so as to avoid unsettling the settled things. Relyingupon the decisions in State of Maharashtra v. Digambar (AIR 1995SC 1991), G.C.Gupta and Others v. N.K.Pandey and Others[(1988) 1 SCC 316] and State of M.P. And Another v. Bhailal Bhai(AIR 1964 SC 1006), it was asserted that the delay must defeat theclaim raised by the petitioner. 5. I have heard Sri.P.J.Anilkumar, learned counsel for the petitioner, Sri.Christopher Abraham, learned Standing Counsel forthe respondents 1 to 3 as well as Sri.S.Manu, learned AssistantSolicitor General of India for the fourth respondent. 6. I have considered the rival contentions. 7. In the decision in M/s.Sarala Memorial Hospital v. Union of India and Another (W.P.(C) No.37775 of 2018) an identicalquestion arose for consideration. After considering the statutoryprovisions of section 234E and section 200A of the Act and theimplications of the amendment brought in to the Act, it was held thatthe amendment would take effect only from 1[st] June, 2015 and isthus prospective in nature. The aforesaid judgment has become finaland is binding upon the authorities. Thus the jurisdiction to levy late W.P.(C) No.1259/22 fee under section 234E arises only from 01-06.2015 and not earlier. 8. As regards the contention on the delay, though the saidcontention was impressive on first blush, it can be seen that thenature of challenge raised by the petitioner is based upon the lack ofjurisdiction of the respondents to impose late fee. Since in matterswhere total lack of jurisdiction is alleged, delay cannot be relied uponas a ground to deny the relief, this Court is of the view that theobjections of the respondents are without any basis. . 9. Further the decisions cited are distinguishable on thefacts of those cases itself. In the decision in Digambar's case(supra), the delay of 20 years in approaching the High Court for grantof compensation for alleged utilization of the land was held as adecisive factor to disentitle the petitioner therein. Similarly inG.C.Gupta's case (supra) the issue related to seniority andpetitioners challenged the orders of confirmation and determinationof inter se seniority only after 15 years. In the decision in BhailalBhai's case (supra) the question related to refund of tax claimedbelatedly. None of those cases related to a total lack of jurisdictionor authority. 10. In view of the above, the demand in Ext.P1 to Ext.P9 W.P.(C) No.1259/22 -:7:- intimations for the period from 2012-13 to 2014-15 is bereft ofauthority and cannot be legally sustainable. 11. Accordingly, I quash Ext.P1 to Ext.P9 intimations to the extent it demands late fee under section 234E for the period from2012-13 till 01.06.2015. The writ petition is therefore allowed as above. Sd/- vps BECHU KURIAN THOMAS JUDGE Corrigendum Dated 30.03.2022 The words “Dated this the 24[th] day of March, 2021” in the header of the judgment shall be read as “Dated this the 24[th] day ofMarch, 2022”. Sd/- vps BECHU KURIAN THOMAS JUDGE APPENDIX OF WP(C) 1259/2022 PETITIONER'S/S' EXHIBITS EXHIBIT P1INTIMATION U/S 234E, AGAINST 26Q OF Q2FOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONERFOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER EXHIBIT P2 11. Accordingly, I quash Ext.P1 to Ext.P9 intimations to the extent it demands late fee under section 234E for the period from2012-13 till 01.06.2015. The writ petition is therefore allowed as above. Sd/- vps BECHU KURIAN THOMAS JUDGE Corrigendum Dated 30.03.2022 The words “Dated this the 24[th] day of March, 2021” in the header of the judgment shall be read as “Dated this the 24[th] day ofMarch, 2022”. Sd/- vps BECHU KURIAN THOMAS JUDGE APPENDIX OF WP(C) 1259/2022 PETITIONER'S/S' EXHIBITS EXHIBIT P1INTIMATION U/S 234E, AGAINST 26Q OF Q2FOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONERFOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER EXHIBIT P2 INTIMATION U/S 234E, AGAINST 26Q OF Q3FOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER.FOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER. EXHIBIT P3INTIMATION U/S 234E, AGAINST 26Q OF Q4FOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONERFOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER EXHIBIT P4INTIMATION U/S 234E, AGAINST 26Q OF Q1FOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONERFOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER EXHIBIT P5INTIMATION U/S 234E, AGAINST 26Q OF Q3FOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONERFOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER EXHIBIT P6INTIMATION U/S 234E, AGAINST 26Q OF Q4FOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONERFOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER EXHIBIT P7 INTIMATION U/S 234E, AGAINST 26Q OF Q1FOR F.Y: 2014-15 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONERFOR F.Y: 2014-15 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER EXHIBIT P8INTIMATION U/S 234E, AGAINST 26Q OF Q2FOR F.Y: 2014-15 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONERFOR F.Y: 2014-15 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER EXHIBIT P9INTIMATION U/S 234E, AGAINST 26Q OF Q3FOR F.Y: 2014-15 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONERFOR F.Y: 2014-15 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER EXHIBIT P10NOTICENO.ITBA/COM/F/17/2021-22/1037769392(1) ISSUED BY THE 1STRESPONDENT REGARDING TDS DUES INCLUDINGLATE FEE UNDER 234E1037769392(1) ISSUED BY THE 1STRESPONDENT REGARDING TDS DUES INCLUDINGLATE FEE UNDER 234E