D.N.PATEL, J. - (1.) RULE .
(2.) COUNSELS appearing for the respondents waive notice of Rule.
(3.) COUNSELS appearing for the petitioners submitted that vires of Section 234E of the Income Tax Act, 1961 is under challenge in these writ petitions. The matters have been argued, at length, by the counsels for the petitioners and it has been submitted that Section 234E as well as Section 271H have been incorporated by way of Finance Act, 2012 in the Income Tax Act, 1961. There is a provision under Section 271H regarding penalty for not furnishing the statement for the Tax deductible or receivable, the minimum penalty is Rs. 10,000/ - and the maximum is Rs. 1 lakh. For the very same reason one more section has been introduced w.e.f. 1st July, 2012 i.e. Section 234E whereby, the respondents are entitled to levy the fee at the rate of Rs. 200 per day for late filing of the statement of TDS or tax collected. Counsels for the petitioners have submitted that prior to introduction of section 234E, there was a Section 272A which was regarding penalty for failure to answer questions, sign statements, furnish information, returns or statements, allow inspections etc. Looking to Sub -section (2) of Section 272A specially clause 'k' thereof, there was already a provision prior to 1st July, 2012 for imposing penalty of Rs. 100 per day, if any, person fails to deliver or cause to be delivered a copy of statement within the time specified under Section 200(3) or in the proviso to Sub -section (3) of Section 206C. This provision of penalty is converted into 234E and now instead of penalty the word "Fee" has been incorporated and Section 271H has also been introduced for penalty. Thus, for non -filing of the statement of TDS or tax collected, there can be a penalty under Section 271H as quantified minimum and maximum under Sub -section (2) thereof and for the very same purpose or for the very same default, fee is also made leviable under Section 234E. Counsels appearing for the petitioners have also pointed out in fine nicety of contentions, fee, tax and penalty and has developed the arguments to the effect that looking to the decision rendered by the Hon'ble Supreme Court in case of Vijayalakshmi Rice Mill and Others Vs. Commercial Tax Officers, Palakol and Others, 2006 6 SCC 763 (para 28 and other paragraphs) and also looking to the decision rendered by the Hon'ble Supreme Court in case of Jindal Stainless Ltd.(2) and Another Vs. State of Haryana and Others, 2006 7 SCC 241, if the fee is collected, but there is no expenditure for the services rendered whatsoever, in these eventualities there is no legal competence or authority with the respondents to levy the fee. Counsels for the petitioners in all the aforesaid writ petitions submitted that looking to the counter -affidavit filed by the respondent - Assistant Commissioner of Income Tax (TDS), Ranchi, nowhere it has been stated that what services are being rendered by the Income Tax Department to the assesses. In absence of such statements in the counter -affidavit and when there are specific averments and arguments, specially in paragraph no. 13 in W.P.(T.) No. 1353 of 2014 and looking to the order passed by the Hon'ble High Court of Karnataka at Bangalore and also looking to the order passed by the Hon'ble High Court of Kerala at Ernakulam, the operation, implementation and execution of notice issued under Section 234E of the Income Tax Act, 1961 may kindly be stayed. It is further argued by the counsels for the petitioners that discrimination has been caused by Government of India, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes by issuing Circular No. 7 of 2014 dated 04.03.2014, by extending time in favour of other assesses to file the statements of TDS and Tax collected whereas no such extension of time is prescribed in this circular and thus its classification is also not fulfilling two tests of Article 14 of the Constitution of India. Having heard the counsels for the Income Tax Department and also the counsels for the petitioners, notice upon Attorney General of India.;