Wp(C) v. Wp(C)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 23 DAY OF MAY 2022 / 2ND JYAISHTA, 1944 WP(C) NO. 1312 OF 2022 PETITIONER: SARK CABLE PRIVATE LIMITEDAGED 55 YEARSVIII/638, NEW INDUSTRIAL DEVELOPMENT AREA, KANJIKODE, PALAKKAD, PIN - 678621BY ADVS.P.J.ANILKUMAR (A-1768)K.N.SREEKUMARANN.SANTHOSHKUMAR RESPONDENTS: 1INCOME TAX OFFICER TDSAAYAKAR BHAVAN, ENGLISH CHURCH ROAD, PALAKKAD, PIN - 6781012DEPUTY COMMISSIONER OF INCOME TAXTDS CPC, AAYKAR BHAVAN, SECTOR-3, VAISHALI, GAZIABAD, UTTARPRADESH, PIN - 2010103CHAIRMANCENTRAL BOARD OF DIRECT TAXES, NORTH BLOCK , NEW DELHI,PIN - 1100024UNION OF INDIA,MINISTRY OF FINANCE, DIRECT TAXES DEPARTMENT, NEW DELHI, PIN - 110001BY ADVS.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENTSRI.MANU.S, CGCCHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BECHU KURIAN THOMAS, J. ----------------------------------------- W.P.(C) No.1312 of 2022 ---------------------------------------- Dated this the 23[rd] day of May, 2022 JUDGMENT As an assessee under the Income Tax Act, 1961,petitioner had deducted TDS for payments made by him andremitted the same to the Income Tax Department. Whilefiling the statement of returns regarding the remittance ofTDS, delay occurred. When the returns were processed, thesecond respondent, on noticing the delay in filing thestatement of TDS remittance, levied late fee under section234E of the Act. 2. By Ext.P1 to Ext.P6 intimations, petitioner was calledupon to pay the late filing fee under section 234E of theIncome Tax Act, 1961 (for short,'the Act'). As per theaforesaid intimations, amounts have been demanded as late WP(C) NO. 1312 OF 2022 fee for the periods from 2012-13 to 2013-14 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 thetime prescribed in sub-section (3) of Section 200 or theproviso to subsection (3) of section 206C, he shall be liable topay, by way of fee, a sum of two hundred rupees for everyday during which the failure continues.” 3. According to the petitioner, though section 234E of the Act was introduced by the Finance Act, 2012 with effectfrom 1st July, 2012, since petitioner is being demanded topay, by Ext.P1 to Ext.P6, late fee for not filing the statementof tax deduction at source, it is necessary to refer to section200A of the Act. It was further submitted that Section200A(1) incorporated clause (c) only with effect from01.06.2015. Sub-clause (c) to section 200A (1) refers to thefee if any to be computed in accordance with the provisionsof section 200A(1)(e). It is the claim of the petitioner that till01.06.2015 petitioner cannot be mulcted with any liability topay late fee for non filing of any statement of tax deductionat source. WP(C) NO. 1312 OF 2022 3. According to the petitioner, though section 234E of the Act was introduced by the Finance Act, 2012 with effectfrom 1st July, 2012, since petitioner is being demanded topay, by Ext.P1 to Ext.P6, late fee for not filing the statementof tax deduction at source, it is necessary to refer to section200A of the Act. It was further submitted that Section200A(1) incorporated clause (c) only with effect from01.06.2015. Sub-clause (c) to section 200A (1) refers to thefee if any to be computed in accordance with the provisionsof section 200A(1)(e). It is the claim of the petitioner that till01.06.2015 petitioner cannot be mulcted with any liability topay late fee for non filing of any statement of tax deductionat source. WP(C) NO. 1312 OF 2022 4. A statement has been filed by the respondentsobjecting to the claim of the petitioner. It is averred that thedemands of late filing fee under section 234E of the Act wereraised by orders issued from 2013 till 2016 and that thedemands are still outstanding. The intimations issued by thedepartment were all appealable orders under section 246A ofthe Act and the petitioner failed to challenge the levy of latefee. In such circumstances, the demands have become finaland the petitioner has accepted the demands. Respondentsalso pleaded that the delay is a ground to refuse anappropriate relief so as to avoid unsettling the settled things.Relying upon the decisions in State of Maharashtra v.Digambar (AIR 1995 SC 1991), G.C.Gupta and Others v.N.K.Pandey and Others[(1988) 1 SCC 316] and State ofM.P. And Another v. Bhailal Bhai (AIR 1964 SC 1006), itwas asserted that the delay must defeat the claim raised bythe petitioner. 5. I have heard Sri.P.J.Anilkumar, learned counsel forthe petitioner, Sri.Christopher Abraham, learned StandingCounsel for the respondents 1 to 3 as well as Sri.S.Manu, learned Assistant Solicitor General of India for the fourthrespondent. 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 of2018) an identical question arose for consideration. Afterconsidering the statutory provisions of section 234E andsection 200A of the Act and the implications of theamendment brought in to the Act, it was held that theamendment would take effect only from 1st June, 2015 andis thus prospective in nature. The aforesaid judgment hasbecome final and is binding upon the authorities. Thus thejurisdiction to levy late fee under section 234E arises onlyfrom 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 thatthe nature of challenge raised by the petitioner is basedupon the lack of jurisdiction of the respondents to imposelate fee. Since in matters where total lack of jurisdiction is 6 alleged, delay cannot be relied upon as a ground to deny therelief, this Court is of the view that the objections of therespondents are without any basis. 9. Further, this Court had considered an identical issue in W.P.(C)No.1259/2022 and quashed the intimations.Petitioner is also similarly placed. 10. In view of the above, the demand in Ext.P1 to Ext.P6 intimations for the period from 2012-13 to 2013-14are bereft of authority and cannot be legally sustainable. 11. Accordingly, I quash Ext.P1 to Ext.P6 intimations tothe extent it demands late fee under section 234E for theperiod from 2012-13 till 01.06.2015. The writ petition is therefore allowed as above. Sd/- BECHU KURIAN THOMASJUDGE AJM APPENDIX OF WP(C) 1312/2022 PETITIONER’S EXHIBITS : Exhibit P1 EXT-P1 INTIMATION U/S 234E, AGAINST 26Q OF Q2 FOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER. Exhibit P2 EXT-P2 INTIMATION U/S 234E, AGAINST 26Q OF Q4 FOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER. Exhibit P3 10. In view of the above, the demand in Ext.P1 to Ext.P6 intimations for the period from 2012-13 to 2013-14are bereft of authority and cannot be legally sustainable. 11. Accordingly, I quash Ext.P1 to Ext.P6 intimations tothe extent it demands late fee under section 234E for theperiod from 2012-13 till 01.06.2015. The writ petition is therefore allowed as above. Sd/- BECHU KURIAN THOMASJUDGE AJM APPENDIX OF WP(C) 1312/2022 PETITIONER’S EXHIBITS : Exhibit P1 EXT-P1 INTIMATION U/S 234E, AGAINST 26Q OF Q2 FOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER. Exhibit P2 EXT-P2 INTIMATION U/S 234E, AGAINST 26Q OF Q4 FOR F.Y: 2012-13 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER. Exhibit P3 EXT-P3 INTIMATION U/S 234E, AGAINST 24Q OF Q1 FOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER. Exhibit P4 EXT-P4 INTIMATION U/S 234E, AGAINST 26Q OF Q1 FOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER. Exhibit P5 EXT-P5 INTIMATION U/S234E, AGAINST 24Q OF Q2 FOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER. Exhibit P6 EXT-P6 INTIMATION U/S 234E, AGAINST 26Q OF Q2 FOR F.Y: 2013-14 ISSUED BY THE 2NDRESPONDENT TO THE PETITIONER. //TRUE COPY// PA TO JUDGE