Madhya Pradesh High Court
Tax Practitioners Association Indore ... vs Union Of India on 7 December, 2015
1
W.P. No.6695/2014
07/12/2015
Shri Sumit Nema, learned Counsel for the
petitioners.
Shri R.L. Jain, learned Senior Counsel
with Ms. Veena Mandlik, learned Counsel for the
respondents.
By the present writ petition under Article 226 of the Constitution of India, the petitioner-Tax Practitioners' Association, Indore and others have challenged the vires of Section 234-E of the "Income Tax Act, 1961" of Chapter XVII as being unconstitutional, arbitrary, unjust, unfair and unreasonable and violative of Article 14 of the Constitution of India.
Counsel for the petitioners had also challenged the demand notices issued under Section 156 of the Income Tax Act and also prayed for 2 quashment of demand notices (Annexure P/6 to P/82) issued under Section 156 of the Income Tax Act by the respondent pursuant to Section 234E of the Income Tax Act. Counsel has candidly admitted that the vires is no longer challenged by him and he would be satisfied if the demand notices are decided in the appeal.
However, Counsel for the respondents- Income Tax Departments has placed on record a letter from the Income Tax Officer (Tech.) for Commissioner of Income Tax (TDS), Bhopal to state that Section 200 A of the Income Tax Act, the amendment has come into effect from 01/06/2015 and the same is reproduced for convenience as under:-
"In this context, I am directed to state that the said case can be appealable in view of the amendment of sections 200A, 246A & 206CB in the income Tax Act, 1961 by the finance Act, 2015, w.e.f. 01/06/2015, the same is reproduced as under:-3
"In section 200A of the I.T. Act, in sub- section (1), for clauses (c) to (e), the following clauses shall be substituted with effect from the 1st day of June, 2015, namely:-
(c) the fee, if any, shall be computed in accordance with the provisions of section 234E;
(d) the sum payable by, or the amount of refund due to, the deductor shall be determined after adjustment of the amount computed under clause (b) and clause (c) against any amount paid under Section 200 or section 201 or section 234E and any amount paid otherwise by way of tax or interest or fee.
(e) an intimation shall be prepared or generated and sent to the deductor specifying the sum determined to be payable by, or the amount of refund due to, him under clause (d); and
(f) the amount of refund due to the deductor in pursuance of the determination under clause (d) shall be granted to the deductor."
"In section 246A of the I.T. Act, in sub- section (1), w.e.f. 1st day of June, 2015:-
(a) in the opening portion, after the words "or any deductor", the words "or any collector" shall be inserted.4
(b) in clause (a), for the words, brackets figures and letter (sub-section(1) of section 200A, where the assessee or the deductor", the words, brackets, figures and letters "sub-section (1) of section 200A or sub-section (1) of section 206CB, where the assessee or the deductor or the collector"
shall be substituted.
3. In view of the above amendments there exists alternative remedy to approach before the CIT (A)."
In view of the above amendment, Counsel for the respondents-Department has stated that the impugned demand notices are appealable under Sections 234-E and 246-A of the Income Tax Act. Counsel for the petitioners has also not disputed this legal position.
In view of the above, we find that the impugned orders are appealable before the Forum CIT (A) and in consequence of the amendments if the appeals as required are filed before the Competent Authority within a period of 15 days' 5 from today; limitation if any shall not stand in the way of the petitioners. At this juncture, Counsel for the petitioners also submitted that he had relied on the Income Tax Act decision passed in the case of Sanjay Kumar Dwivedi and another Vs. Dy. Commissioner of Income Tax Officer (CPC)-TDS passed in ITA No.551/Ind/2014 and ITA No.552/Ind/2014 to hold that the appeal of the assessee are not maintainable under Section 234E of the Act. It is, therefore, directed that the said decision shall not stand in the way of the petitioners.
With the aforesaid observation and directions, the present writ petition is disposed of to the extent herein above indicated.
CC as per rules.
(Mrs. S.R. Waghmare) (Sujoy Paul)
Judge Judge
soumya