Singhvi (supra) held that s. 200A was not merely a regulatory provision, but was conferring substantive power on the authority. The Court was also of the opinion that s. 234E of the Act was in the nature of privilege to the defaulter if he fails to pay fees then he would be rid of rigor of the penal provision of s. 271H of the Act. With both these propositions, with respect, we are unable to concur. Sec. 200A is not a source of substantive power. Substantive power to levy fee can be traced to s. 234E of the Act. Further, the fee under s. 234E of the Act is not in lieu of the penalty of s. 271H of the Act. Both are independent levies. Sec. 271H only provides that such penalty would not be levyied if certain conditions are fulfilled. One of the conditions is that the tax with fee and interest is paid. The additional condition being that the statement is filed latest within one year from the due date. Counsel for the petitioner however, referred to the decision of Supreme Court in case of CIT v. B.C. Srinivasa Setty, (1981) 21 CTR (SC) 138, to contend that when a machinery provision is not provided, the levy itself would fail. The decision of Supreme Court in case of B.C. Srinivasa Setty (supra) was rendered in entirely different background. Issue involved was of charging capital gain on transfer of a capital asset. In case on hand, the asset was in the nature of goodwill. The Supreme Court referring to various provisions concerning charging and computing capital gain observed that none of these provisions suggest that they include an asset In the acquisition of which no cost can be conceived. In such a case, the asset is sold and the consideration is brought to tax, what is charged is a capital value of the asset and not any profit or gain. This decision therefore would not apply in the present case.”
