Alapatt Fashion Jewellery vs Income Tax Officer (Tds)
2023 Latest Caselaw 478 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
    WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                         WP(C) NO. 799 OF 2023
PETITIONER/S:

          ALAPATT FASHION JEWELLERY
          AGED 40 YEARS
          5/3410,H1, GALERIYA TRADE CENTRE.,
          MAVOOR ROAD.,
          KOZHIKODE-(REPRESENTED BY SRI. ANTONY FRANCIS ALAPATT,
          PARTNER ), PIN - 673004
          BY ADVS.
          P.J.ANILKUMAR (A-1768)
          K.N.SREEKUMARAN
          N.SANTHOSHKUMAR


RESPONDENT/S:

    1     INCOME TAX OFFICER (TDS)
          AAYKAR BHAVAN,MANACHIRA,
          KOZHIKODE, PIN - 673001
    2     ASSISTANT COMMISSIONER OF INCOME TAX
          TDS CPC,AAYKAR BHAVAN, SECTOR-3,
          VAISHALI, GAZIABAD,
          UTTARPRADESH, PIN - 201010
    3     COMMISSIONER OF INCOME TAX (APPEALS)
          NATIONAL FACELESS APPEAL CENTRE,
          NEW DELHI , PIN - 110003
    4     CENTRAL BOARD OF DIRECT TAXES -REPRESENTED BY ITS
          CHAIRMAN
          NORTH BLOCK ,NEW DELHI, PIN - 110002
    5     THE UNION OF INDIA-REPRESENTED BY ITS SECERATARY
          MINISTRY OF FINANCE,
          DIRECT TAXES DEPARTMENT,NEW DELHI, PIN - 110001
          BY ADVS.
          CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT
          SHRI.P.VIJAYAKUMAR, ASG OF INDIA


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 799 OF 2023                         2



                                    JUDGMENT

This writ petition has been filed, challenging the levy of

fees under Section 234E of the Income Tax Act, for the

financial year 2012-13 on the ground that the provisions of

Section 234E of the Act can operate only prospectively, i.e,

with effect from 01.06.2015 and not in respect of any earlier

period.

2. Learned counsel appearing for the petitioner would

submit that though a statutory appeal was filed, the same has

also been rejected. Learned counsel appearing for the

petitioner further submits that this issue is covered by the

judgment of this Court in W.P.(C.) No.1259 of 2022, where

this Court held as follows:-

''7. In the decision in M/s.Sarala Memorial Hospital v. Union of India and Another (W.P.(C) No.37775 of 2018) an identical question arose for consideration. After considering the statutory provisions of section 234E and section 200A of the Act and the implications of the amendment brought in to the Act, it was held that the amendment would take effect only from 1st June, 2015 and is thus prospective in nature. The aforesaid judgment has become final and is binding upon the authorities. Thus the jurisdiction to levy late fee under section 234E arises only from 01-06.2015 and not earlier.

8. As regards the contention on the delay, though the said contention was impressive on first blush, it can be seen that the nature of challenge raised by the petitioner is based upon the lack of jurisdiction of the respondents to impose late fee. Since in matters where total lack of jurisdiction is alleged, delay cannot be relied upon as a ground to deny the relief, this Court is of the view that the objections of the respondents are without any basis.

9. Further the decisions cited are distinguishable on the

facts of those cases itself. In the decision in Digambar's case (supra), the delay of 20 years in approaching the High Court for grant of compensation for alleged utilization of the land was held as a decisive factor to disentitle the petitioner therein. Similarly in G.C.Gupta's case (supra) the issue related to seniority and petitioners challenged the orders of confirmation and determination of inter se seniority only after 15 years. In the decision in Bhailal Bhai's case (supra) the question related to refund of tax claimed belatedly. None of those cases related to a total lack of jurisdiction or authority.

10. In view of the above, the demand in Ext.P1 to Ext.P9 intimations for the period from 2012-13 to 2014-15 is bereft of authority and cannot be legally sustainable.''

3. Learned Standing Counsel appearing for the

respondent-Department fairly submits that in respect of the

periods prior to 01.06.2015, the issue stands covered by the

judgment of this Court in W.P.(C.) No.1259 of 2022.

Having regard to the aforesaid submissions and being

in full agreement with the view taken by this Court in W.P.

(C.) No.1259 of 2022, this writ petition is allowed. Exts.P1,

P2 and P3 intimations are quashed to the extent, they demand

fee under Section 234E of the Income Tax Act.

sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 799/2023

PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE INTIMATION OF LEVY U/S 234E DATED20..09..2021, AGAINST 26Q OF Q2 FOR F.Y: 2012-13 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

Exhibit-P2 TRUE COPY OF THE INTIMATION OF LEVY U/S 234E DATED 09..09..2013, AGAINST 26Q OF Q3 FOR F.Y: 2012-13 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit-P3 TRUE COPY OF THE INTIMATION OF LEVY U/S 234E DATED 29..09..2016, AGAINST 26Q OF Q4 FOR F.Y: 2012-13 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

Exhibit-P4 TRUE COPY OF THE APPELLATE ORDER FOR THE ASSESSMENT YEAR 2013-14 AGAINST EXT-P1,P2&P3 (RELEVANT FINANCIAL YEAR 2012-13) ISSUED BY 3RD RESPONDENT TO THE PETITIONER DATED11..05..2022.

Exhibit-P5 TRUE COPY OF THE JUDGMENT IN HEAD MASTER VS INCOME TAX OFFICER (TDS), W.P.(C) 1078/2022 DATED 18..05..2022 .