Income Tax Appellate Tribunal - Jaipur
Shri Jagdish Prasad Bugalia, Jhunjhunu vs Income Tax Officer, Tds-3, Jaipur on 15 February, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM
vk;dj vihy la-@ITA No. 704/JP/2017
fu/kZkj.k o"kZ@Assessment Year : 2015-16
Jagdish Prasad Bugalia, cuke Income Tax Officer,
E-35, Indira Nagar, Vs. TDS-3,
Jhunjhunu. Jaipur.
TAN/PAN No. JPRJ 07865 E
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.L. Poddar &
Ms. Isha Kanungo (Adv)
jktLo dh vksj ls@ Revenue by : Shri R.A. Verma (Addl.CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 30/01/2018
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 15/02/2018
vkns'k@ ORDER
PER: BHAGCHAND, A.M. This is an appeal filed by the assessee emanates from the order of the ld. CIT(A)-3, Jaipur dated 01/08/2017 for the A.Y. 2015-16, wherein the assessee has raised sole ground of appeal, which is against confirming the recovery of late fees U/s 234E of the Income Tax Act, 1961 (in short the Act) when it was not deposited before filing statement of TDS.
2 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3)
2. While pleading on behalf of the assessee, the ld. AR has reiterated the arguments as made before the ld. CIT(A) and prayed to allow the appeal.
3. On the contrary, the ld Sr. DR has relied on the orders of the authorities below.
4. The Bench have heard both the sides on this issue. The ld. CIT(A) has dealt the issue in detail by holding as under:
"4.3 I have carefully considered the facts of the case, findings of the AO and submission of the appellant. I have gone through the grounds of appeal and written submissions carefully. It is seen that the appellant has contended that prior to 01.06,2015, there was no enabling provision in Sec. 200A of the Act for making adjustment in respect of the statement filed by the assessee with regard to tax deducted at source by levying fee u/s 234E of the Act. The parliament for the first time enabled the AO to make adjustment by levying fee u/s 234E of the Act w.e.f. 01.06.2015. In order to comprehend the argument of the appellant, it would be appropriate to reproduce the provisions of Sec. 200A as stood before 01.06.2015, the amendment made in Sec. 200A by the Finance Act, 2015 and the provisions of Sec. 234E.
(a) Provisions of Sec. 200A, as they stood prior to 01.06.2015:
" ( I ) Whereas statement of tax deduction at source or a correction statement has been made by a person deducting any sum (hereafter referred to in this section as deductor) under section 200, such statement shall be processed in the following manner, namely:-
(a) the sums deductible under this Chapter shall be computed after making the following adjustments, namely; -
3 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3)
(i) any arithmetical error in the statement; or
(ii) an incorrect claim, apparent from any information in the statement;
(b) the interest, if any, shall be computed on the basis of the sums deductible as computed in the statement;
(c) the sum payable by, or the amount of refund due to, the deductor shall be determined after adjustment of amount computed under clause (b) against any amount paid under section 200 and section 201, and any amount paid otherwise by way of tax or interest;
(d) 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 (c); and
(e) the amount of refund due to the deductor in pursuance of the determination under clause (c) shall be granted to the deductor;
Provided that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the statement is filed.
Explanation - For the purposes of this sub-section, "an incorrect claim apparent from any information in the statement" shall mean a claim, on the basis of an entry, in the statement-
(1) of an item, which is inconsistent with another entry of the same or some other item in such statement;
(ii) in respect of rate of deduction of tax at source, where such rate is not in accordance with the provisions of this Act;
(2) For the purposes of processing of statements under sub-section (I), the Board may make d scheme for centralised processing of statements of tax deducted at source to expeditiously determine the tax payable by, or the refund due to, the deductor as required under the said sub- section. "
(b) Amendment made Sec. 200A by the Finance Act, 2015:
4 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3) "In section 200A of the Income-tax Act, in sub-section (I), 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 deduclor shall be determined after adjustment of the amount computed under clause
(b) and clause(c) against any amount paid under section 200 or section 20 J 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. "
(c) Provisions of Sec. 234E :
"(1) Without prejudice to the provisions of the Act, where a person fails to deliver or cause to be delivered a statement within the time prescribed in subsection (3) of section 200 or the proviso to subsection (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 failure continues.
(2) The amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be.
(3) The amount of fee referred to in sub-section (1) shall be paid before, delivering or causing to be delivered a statement in accordance, with subsection (3) of section 200 or the proviso to sub-section (3) of section 206C.
(4) The provisions of this section shall apply to a statement referred to in subsection (3) of section 200 or the proviso to sub-section (3) of section 206C which is to be delivered or caused to be delivered for tax deducted at source or tax collected at source, as the case may be, on or after the 1" day of July, 2012. "
5 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3) The appellant relied upon various case laws / arguments where it has been held that prior to 01.06.2015, there was no enabling provision in Sec. 200A of the Act for making adjustment in respect of the statement filed by the assessee with regard to tax deducted at source by levying fee u/s 234E of the Act. Only after amendment made in Sec. 200A by the Finance Act, 2015 w.e.f. 01.06.2015 quoted above, the assessing officer was empowered to make adjustment u/s 200A by levying fee u/s 234E of the Act.
However Hon'ble Rajasthan High Court in case of M/s Dundlod Shikshan Sansthan and others vide order dated 28.07.2015 held that even prior to these amendments the imposition of fees U/s 234E was not illegal. While discussing this issue they referred to Bombay High Court decision wherein it was held that "The timely processing of returns is the bedrock of an efficient tax administration system. If the income tax returns, especially having refund claims, are not processed in a timely manner, then (i) a delay occurs in the granting of credit of TDS to the person on whose behalf tax is deducted (the deductee) and consequently leads to delay in issuing refunds to the deductee, or raising of infructuous demands against the deductee; (ii) the confidence of a general taxpayer on the tax administration is eroded; (iii) the late payment of refund affects the Government financially as the Government has to pay interest for delay in granting the refunds; and (iv) the delay in receipt of refunds results into a cash flow crunch, especially for business entities Looking at this from this perspective, we are clearly of the view that section 234E of the Act is not punitive in nature but a fee which is a fixed charge of the view that section 234E of the Act is not punitive in nature but a fee which is a fixed charge for the extra service which the Department has to provide due to the late filing of the TDS statements. "
Respectfully following the above decision of Rajasthan High Court I find that there is no valid reason or justification to interfere with the
6 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3) compensatory fees imposed for late filing of TDS return. Accordingly the demand raised by AO for late filing fees u/s 234E is confirmed."
4.1 The Hon'ble Rajasthan High Court in the case of Dundlod Shikshan Sansthan Vs. Union of India (2015) 63 taxmann.com 243 (Raj.) has held as under:
The unamended section 200 referred to the levy on the late filing of returns as penalty. It was thereafter termed as fee, which is a compensatory in nature. In Jindal Stainless Ltd. v. State of Haryana [2006] 152 Taxman 561 (SC), the Constitution Bench of the Supreme Court has discussed the purpose of taxing statute. [Para 6] The constitutional validity of the statutory provision is not amenable to be challenged on the ground that the performance insisted upon by the statutory provision is too onerous or that the statute does not leave sufficient time or does not allow reasonable cause to be considered for violation of the provision. In G.P. Singh's Principles of Statutory Interpretation, 9th Edn., 2004, p. 497, referring to a large number of judgments of the Federal Court and the Supreme Court, it was observed that for upholding the constitutionality of a statute, the Court can construe or interpret its general words narrowly or widely. The Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving the statutory provision a strained meaning, or narrower or wider meaning, than what appears on the face of it. It is only when all efforts to do so fail should the Court declare a statute to be unconstitutional. [Para 7] In the instant case, the fee was levied under section 200 for late filing of the returns, prior to the amendments made by the Finance Act, 2015 with effect from 1-6-2015 in sections 200A, 246A and 272A providing for computation and appeal. It is not found that even prior to these amendments the imposition of fee was illegal. The Court in exercise of the power under article 226 of the Constitution of India find any valid reasons or justification to interfere with the compensatory fees imposed for late filing of the TDS returns on flat rates. The absence of any provision for condonation of delay and the appeal prior to amendments also did not make the imposition of late fees by section 234E to be ultra vires. [Para 8] The writ petition has no merit and is accordingly dismissed. [Para 9] The Hon'ble Bombay High Court in the case of Rashmikant Kundalia Vs. Union of India (2015) 229 taxman 596 (Bom) while examining the 7 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3) constitutional validity of Section 234E has upheld the validity and also held as under:
9. We have heard the learned counsel, and perused the papers and proceedings in the Petition. Section 200 of the Act deals with the duty of a person deducting tax. It reads thus :
"200. Duty of person deducting tax.- (1) Any person deducting any sum in accordance with the foregoing provisions of this chapter shall pay within the prescribed time, the sum so deducted to the credit of the Central Government or as the Board directs.
(2) Any person being an employer, referred to in sub-section (1A) of Section 192 shall pay, within the prescribed time, the tax to the credit of the Central Government or as the Board directs.
(3) Any person deducting any sum on or after the 1st day of April, 2005 in accordance with the foregoing provisions of this chapter or, as the case may be, any person being an employer referred to in sub-section (1A) of Section 192 shall, after paying the tax deducted to the credit of the Central Government within the prescribed time, prepare such statements for such period as may be prescribed and deliver or cause to be delivered to the prescribed income tax authority or the person authorised by such authority such statement in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed.
*[Provided that the person may also deliver to the prescribed authority a correction statement for rectification of any mistake or to add, delete or update the information furnished in the statement delivered under this sub-section in such form and verified in such manner as may be specified by the authority.]"
10. On a perusal of section 200, it is clear that sub-section (3) thereof, and with which we are concerned, inter alia stipulates that any person responsible for deducting any sum by way of tax, on or after 1st April, 2005 in accordance with the foregoing provisions of Chapter XVII or, as the case may be, any person being an employer referred to in sub-section (1A) of section 192 shall, after paying the tax so deducted to the credit of the Central Government within the prescribed time, prepare such statements for such period as may be prescribed and deliver or cause to be delivered to the prescribed income tax authority or the person authorised by such authority, such statements, in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed. The proviso (which was inserted w.e.f. 01-10-2014) 8 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3) further stipulates that a person may also deliver to the prescribed authority a correction statement for rectification of any mistake or to add, delete or update the information furnished in the statement. Similarly, the proviso to sub-section (3) of section 206C and which deal with profits and gains from the business of trading in alcoholic liquor, forest produce, scrap etc. also provide for similar provisions as set out in section 200(3). Though in the present case we are not concerned with section 206C, we are referring to it in passing only because the proviso to sub-section (3) of section 206C finds mentions in section 234E, the constitutional validity of which is challenged before us.
11. Section 234E, the constitutional validity of which is challenged before us, was brought into the Income Tax Act, 1961 with effect from 1st July 2012. The said section reads as under :
"G Levy of fee in certain cases 234E. Fee for default in furnishing statements.-(1) Without prejudice to the provisions of the Act, where a person fails to deliver or cause to be delivered a statement within the time prescribed 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 failure continues.
(2) The amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be.
(3) The amount of fee referred to in sub-section (1) shall be paid before delivering or causing to be delivered a statement in accordance with sub-section (3) of Section 200 or the proviso to sub-section (3) of Section 206C.
(4) The provisions of this section shall apply to a statement referred to in sub-
section (3) of Section 200 or the proviso to sub-section (3) of Section 206C which is to be delivered or caused to be delivered for tax deducted at source or tax collected at source, as the case may be, on or after the 1st day of July, 2012."
12. On a perusal of sub-section (1) of section 234E, it is clear that a fee is sought to be levied inter alia on a person who fails to deliver or cause to be delivered the TDS return/statements within the prescribed time in sub-section (3) of section 200. The fee prescribed is Rs.200/- for every day during which the failure continues. Sub-section (2) further stipulates that the amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible as the case may be.
9 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3)
13. It is not in dispute that as per the existing provisions, a person responsible for deduction of tax (the deductor) is required to furnish periodical quarterly statements containing the details of deduction of tax made during the quarter, by the prescribed due date. Undoubtedly, delay in furnishing of TDS return/statements has a cascading effect. Under the Income Tax Act, there is an obligation on the Income Tax Department to process the income tax returns within the specified period from the date of filing. The Department cannot accurately process the return on whose behalf tax has been deducted (the deductee) until information of such deductions is furnished by the deductor within the prescribed time. The timely processing of returns is the bedrock of an efficient tax administration system. If the income tax returns, especially having refund claims, are not processed in a timely manner, then (i) a delay occurs in the granting of credit of TDS to the person on whose behalf tax is deducted (the deductee) and consequently leads to delay in issuing refunds to the deductee, or raising of infructuous demands against the deductee; (ii) the confidence of a general taxpayer on the tax administration is eroded; (iii) the late payment of refund affects the Government financially as the Government has to pay interest for delay in granting the refunds; and (iv) the delay in receipt of refunds results into a cash flow crunch, especially for business entities.
14. We find that the Legislature took note of the fact that a substantial number of deductors were not furnishing their TDS return/statements within the prescribed time frame which was absolutely essential. This led to an additional work burden upon the Department due to the fault of the deductor by not furnishing the information in time and which he was statutorily bound to furnish. It is in this light, and to compensate for the additional work burden forced upon the Department, that a fee was sought to be levied under section 234E of the Act. Looking at this from this perspective, we are clearly of the view that section 234E of the Act is not punitive in nature but a fee which is a fixed charge for the extra service which the Department has to provide due to the late filing of the TDS statements.
15. As stated earlier, due to 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 10 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3) 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.
16. We are supported in our view by a judgment of a division bench of the Calcutta High Court in the case of Howrah Tax Payers' Association v. Government of West Bengal [2011] 5 CHN 430. Before the Calcutta High Court, the constitutional validity of imposition of a "late fee" under section 32(2) of the West Bengal Value Added Tax Act, 2003 came up for consideration. After analysing the provisions of the Bengal Value Added Tax Act, the Calcutta High Court held as under:
"10. In case of levying tax there is no quid pro quo between the Tax payer and the State. But element of quid pro quo is a must in case of imposing Fee. By virtue of impugned amendment, a dealer is entitled to get service indirectly from the authority upon payment of late fee. His irregular filing of return is regularised upon payment of late fee without being suffered from penal consequences which can not be categorised as nothing but special service. Thus, there exists quid pro quo in imposing late fee.
11. In this context it is pertinent to mention here that though a fee must be co- related to the services rendered, such relationship need not be mathematical one even casual co-relationship in all that is necessary. The view of the Apex Court in (2005) 2 SCC 345 (referred to by the learned Tribunal at page 14 of the impugned judgment) removed all the doubts on this issue." (Emphasis supplied)
17. It would also be apposite to refer to the observations of the Supreme Court in the case Sona Chandi Oal Committee v. State of Maharashtra [2005] 2 SCC 345 and which judgment has been referred to by the Calcutta High Court. The Supreme Court, in paragraph 22 stated thus:
"22. A three-Judge Bench of this Court in B.S.E. Brokers' Forum v. Securities and Exchange Board of India [(2001) 3 SCC 482] after considering a large number of authorities, has held that much ice has melted in the Himalayas after the rendering of the earlier judgments as there was a sea change in the judicial thinking as to the difference between a tax and a fee since then. Placing reliance on the following judgments of this Court in the last 20 years, namely, Sreenivasa General Traders v. State of A.P. [(1983) 4 SCC 353], City Corpn. of Calicut v. Thachambalath Sadasivan [(1985) 2 SCC 112 : 1985 SCC (Tax) 211], Sirsilk Ltd. v. Textiles Committee [1989 Supp (1) SCC 168 : 1989 SCC (Tax) 219], Commr. & Secy. to Govt., Commercial Taxes & Religious Endowments Deptt. v. Sree Murugan Financing Corpn. [(1992) 3 SCC 488], Secy. to Govt. of Madras v. P.R. Sriramulu [(1996) 1 SCC 345], Vam Organic Chemicals Ltd. v. State of U.P. 11 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3) [(1997) 2 SCC 715], Research Foundation for Science, Technology & Ecology v. Ministry of Agriculture [(1999) 1 SCC 655] and Secunderabad Hyderabad Hotel Owners' Assn. v. Hyderabad Municipal Corpn. [(1999) 2 SCC 274] it was held that the traditional concept of quid pro quo in a fee has undergone considerable transformation. So far as the regulatory fee is concerned, the service to be rendered is not a condition precedent and the same does not lose the character of a fee provided the fee so charged is not excessive. It was not necessary that service to be rendered by the collecting authority should be confined to the contributories alone. The levy does not cease to be a fee merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have a direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. Quid pro quo in the strict sense was not always a sine qua non for a fee. All that is necessary is that there should be a reasonable relationship between the levy of fee and the services rendered. It was observed that it was not necessary to establish that those who pay the fee must receive direct or special benefit or advantage of the services rendered for which the fee was being paid. It was held that if one who is liable to pay, receives general benefit from the authority levying the fee, the element of service required for collecting the fee is satisfied." (Emphasis supplied)
18. We are therefore clearly of the view that the fee sought to be levied under section 234E of the Income Tax Act, 1961 is not in the guise of a tax that is sought to be levied on the deductor. We also do not find the provisions of section 234E as being onerous on the ground that the section does not empower the Assessing Officer to condone the delay in late filing of the TDS return/statements, or that no appeal is provided for from an arbitrary order passed under section 234E. It must be noted that a right of appeal is not a matter of right but is a creature of the statute, and if the Legislature deems it fit not to provide a remedy of appeal, so be it. Even in such a scenario it is not as if the aggrieved party is left remediless. Such aggrieved person can always approach this Court in its extraordinary equitable jurisdiction under Article 226/227 of the Constitution of India, as the case may be. We therefore cannot agree with the argument of the Petitioners that simply because no remedy of appeal is provided for, the provisions of section 234E are onerous. Similarly, on the same parity of reasoning, we find the argument regarding condonation of delay also to be wholly without any merit.
19. It is now well settled that even though this Court exercising jurisdiction under Article 226 of the Constitution of India has the power to declare a statute (or any provision thereof) as unconstitutional, it should exercise great restraint before exercising such a power. Really speaking, there is only one ground for 12 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3) declaring an act of the legislature as invalid, and that is if it clearly violates some provision of the Constitution of India in so evident a manner so as to leave no manner of doubt. Before declaring a statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates the provisions of the Constitution of India. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. The Court must therefore make every effort to uphold the constitutional validity of a statute, even if it requires giving the statutory provision a strained meaning, or a narrower or wider meaning, than what appears on the face of it. It is only when all efforts to do so fail should the Court declare a statute to be unconstitutional.
20. It is equally well settled that a statute relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, freedom of religion etc. As regards economic and other regulatory legislation it is imperative that the Court exercises judicial restraint and grants greater latitude to the legislature whilst judging the constitutional validity of such a statute. This is for the simple reason that the Court does not consists of economic and administrative experts and has no expertise in these matters.
21. These well settled principles have been very succinctly set out in the judgment of the Supreme Court in the case of Government of Andhra Pradesh v. Smt. P. Laxmi Devi [2008] 4 SCC 720 and more particularly, paragraphs 46, 67, 68, 78, 79 and 80 thereof, which read thus:
'46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament can make under List I to the Seventh Schedule, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto v. State of Kerala [(1979) 1 SCC 23 : AIR 1979 SC 83] SCC para 6 : AIR para
6. Also, it is none of the concern of the court whether the legislation in its opinion is wise or unwise.
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67. Hence if two views are possible, one making the provision in the statute constitutional, and the other making it unconstitutional, the former should be preferred vide Kedar Nath Singh v. State of Bihar [AIR 1962 SC 955] . Also, if it is necessary to uphold the constitutionality of a statute to construe its general words narrowly or widely, the court should do so vide G.P. Singh's Principles of Statutory Interpretation, 9th Edn., 2004, p. 497. Thus the word "property" in the Hindu Women's Right to Property Act, 1937 was construed by the Federal Court in Hindu Women's Rights to Property Act, 1937, In re [AIR 1941 FC 72] to mean "property other than agricultural land", otherwise the Act would have become unconstitutional.
68. The court must, therefore, make every effort to uphold the constitutional validity of a statute, even if that requires giving the statutory provision a strained meaning, or narrower or wider meaning, than what appears on the face of it. It is only when all efforts to do so fail should the court declare a statute to be unconstitutional.
78. In para 8 of the Constitution Bench decision in R.K. Garg case [R.K. Garg v.
Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] it was observed (as quoted above) that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, freedom of religion, etc. Thus, the Constitution Bench decision in R.K. Garg case [(1981) 4 SCC 675 : 1982 SCC (Tax) 30] is an authority for the proposition which has been stated herein, namely, when a law of the legislature encroaches on the civil rights and civil liberties of the people mentioned in Part III of the Constitution (the fundamental rights), such as freedom of speech, freedom of movement, equality before law, liberty, freedom of religion, etc., the Court will not grant such latitude to the legislature as in the case of economic measures, but will carefully scrutinise whether the legislation on these subjects is violative of the rights and liberties of the citizens, and its approach must be to uphold those rights and liberties, for which it may sometimes even have to declare a statute to be unconstitutional.
79. Some scholars regarded it a paradox in the judgments of Holmes, J. (who, as we have already stated above, was a disciple of Thayer) that while he urged tolerance and deference to legislative judgment in broad areas of law-making challenged as unconstitutional, he seemed willing to reverse the presumption of constitutionality when laws inhibiting civil liberties were before the court.
80. However, we find no paradox at all. As regards economic and other regulatory legislation judicial restraint must be observed by the court and greater latitude must be given to the legislature while adjudging the 14 ITA 704/JP/2017_ Jagdish Pd. Bugalia Vs ITO (TDS-3) constitutionality of the statute because the court does not consist of economic or administrative experts. It has no expertise in these matters, and in this age of specialisation when policies have to be laid down with great care after consulting the specialists in the field, it will be wholly unwise for the court to encroach into the domain of the executive or legislative (sic legislature) and try to enforce its own views and perceptions.'
22. Therefore even looking at it from the perspective as set out in the aforesaid judgment, we are of the clear view that Section 234E of the Income Tax Act, 1961 does not violate any provision of the Constitution and is therefore intra vires, Constitution of India.
23. In view of the aforesaid discussion in this judgment, we find no merit in this Writ Petition and the same is hereby dismissed. Rule is discharged. However, in the facts and circumstances of the case, we leave the parties to bear their own costs."
Respectfully following the above decision of Hon'ble Rajasthan High Court and the Hon'ble Bombay High Court, the Bench finds that there is no valid reason or justification to interfere with the compensatory fees imposed for late filing of TDS return. Accordingly the order of the ld.
CIT(A) is hereby upheld.
5. In the result, appeal of the assessee is dismissed.
Order pronounced in the open court on 15/02/2018.
Sd/- Sd/-
¼fot; iky jko½ ¼Hkkxpan½
(VIJAY PAL RAO) (BHAGCHAND)
U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Tk;iqj@Jaipur
fnukad@Dated:- 15th February, 2018
*Ranjan
15 ITA 704/JP/2017_
Jagdish Pd. Bugalia Vs ITO (TDS-3)
vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Jagdish Prasad Bugalia, Jhunjhunu.
2. izR;FkhZ@ The Respondent- The ITO, TDS-3, Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 704/JP/2017) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar