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Kerala high court extends interim stay for another 2 months

Nikhil Kaushik (Fellow CA) (85053 Points)

15 April 2014

Dear All,

please take note of the fact that Kerala High Court has extended the stay on application of section 234E of the Act by another 2 months on 27 March 2014.

Attached is the order.

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2 Replies

Nikhil Kaushik (Fellow CA) (85053 Points)
Replied 09 February 2015

Mumbai High Court rules - 234E fees constitutionally Valid

Rashmikant Kundalia vs. UOI (Bombay High Court)

S. 234E: The late filing of TDS returns by the deductor causes inconvenience to everyone and s. 234E levies a fee to regularize the said late filing. The fee is not in the guise of a tax nor is it onerous. The levy is constitutionally valid

The late submission of TDS statements means the Department is burdened with extra work which is otherwise not required if the TDS statements were furnished within the prescribed time. This fee is for the payment of the additional burden forced upon the Department. A person deducting the tax (the deductor), is allowed to file his TDS statement beyond the prescribed time provided he pays the fee as prescribed under section 234E of the Act. In other words, the late filing of the TDS return/statements is regularised upon payment of the fee as set out in section 234E. This is nothing but a privilege and a special service to the deductor allowing him to file the TDS return/statements beyond the time prescribed by the Act and/or the Rules. We therefore cannot agree with the argument of the Petitioners that the fee that is sought to be collected under section 234E of the Act is really nothing but a collection in the guise of a tax

Z ( ) (2960 Points)
Replied 09 February 2015

Requesting view points

I haven't read this judgement completely but main thrust under this writ petition was on "fees"

But there is no specific provision under Income tax Act which provides for RECOVERY of such amount, no person has been made responsible to pay this fees

Meaning of "person responsible for paying" .

204. For the purposes of [the foregoing provisions of this Chapter] and 93section 285, the expression "person responsible for paying" means—

(i) in the case of payments of income chargeable under the head "Salaries", other than payments by the Central Government or the Government of a State, the employer himself or, if the employer is a company, the company itself, including the principal officer thereof;

(ii) in the case of payments of income chargeable under the head "Interest on securities", other than payments made by or on behalf of the Central Government or the Government of a State, the local authority, corporation or company, including the principal officer thereof;

[(iia) in the case of any sum payable to a non-resident Indian, being any sum representing consideration for the transfer by him of any foreign exchange asset, which is not a short-term capital asset, the [authorised person] responsible for remitting such sum to the non-resident Indian or for crediting such sum to his Non-resident (External) Account maintained in accordance with [the Foreign Exchange Management Act, 1999 (42 of 1999)], and any rules made thereunder;]

(iii) [in the case of credit, or, as the case may be, payment] of any other sum chargeable under the provisions of this Act, the payer himself, or, if the payer is a company, the company itself including the principal officer thereof;

[(iv) in the case of credit, or as the case may be, payment of any sum chargeable under the provisions of this Act made by or on behalf of the Central Government or the Government of a State, the drawing and disbursing officer or any other person, by whatever name called, responsible for crediting, or as the case may be, paying such sum.]

[Explanation.—For the purposes of this section,—

(a) "non-resident Indian" and "foreign exchange asset" shall have the meanings assigned to them in Chapter XII-A;

1[(b) "authorised person" shall have the meaning assigned to it in clause (c)2 of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999).]]

Years ago there was a judgement of ETRNIT EVEREST LTD 1977 Madras HC

It relates to duties of excise

Amount could not be recovered because there was no specific provision for same

Also note that S.11D did provide for making the payment , unlike our 204

Earlier S. 11D was

(1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government.

1A came due to aforementioned case

(1A) Every person, who has collected any amount in excess of duty assessed or determined and paid on any excisable goods or has collected any amount as representing duty of excise on any excisable goods which are wholly exempt or chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government.