TMI Blog2018 (10) TMI 1587X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 To 661/PUN/2018 And ITA No. 1018PUN/2018 To 1028/PUN/2018 - - - Dated:- 25-10-2018 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Appellant : Shri Sanket Joshi For The Respondent : Shri Rajesh Gawli ORDER PER SUSHMA CHOWLA, JM: This bunch of appeals filed by two different assessee are against separate orders of CIT(A)-3, Nashik, dated 20.04.2018 and 21.02.2018, respectively, relating to different assessment years against orders passed under sections 154 200A and 200A r.w.s. 234E of the Income-tax Act, 1961 (in short the Act ). 2. The bunch of present appeals relating to two different assessee on similar issue were heard together and are being disposed of by this consolidated order for the sake of convenience. 3. First bunch of appeals relate to Medical Superintendent Rural Hospital and the second bunch of appeals relate to Junagade Healthcare Pvt. Ltd. Both the bunches relate to similar issue of levy of charges under section 200A r.w.s. 234E of the Act. In order to adjudicate the issues, we refer to the facts and issues in ITA No.651/PUN/2018. 4. The assessee in ITA No.651/PUN/2018 has raised the following grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, the Legislature brought in section 234E of the Act to provide effective deterrence as is apparent from Explanatory Notes to Finance Act, 2012, which provided levy of fees @ ₹ 200/- per day. The CIT(A) observed that the CPC, TDS accordingly passed orders levying late fees under section 234E of the Act r.w.s. 200A(1) of the Act in case of delayed filing of return. Since many Courts had held that there was no enabling provision under section 200A of the Act before 01.06.2015 to levy fees under section 234E of the Act, so section 200A of the Act was amended w.e.f. 01.06.2015 by Finance Act, 2015, which specifically provides levy of late filing fees under section 234E of the Act while processing the return under section 200A of the Act. The CIT(A) took note of the decision of Pune Bench of Tribunal, wherein it was decided that prior to 01.06.2015, there was no enabling provision in section 200A of the Act for making adjustment in respect of statements filed by assessee with regard to tax deducted at source, by levying late filing fees under section 234E of the Act. Thus, the Assessing Officer could not make any adjustment other than the ones prescribed in section 200A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther referred to the decision of the Hon ble High Court of Karnataka in Fatheraj Singhvi Vs. Union of India (supra), wherein it has been laid down that demand raised under section 200A of the Act for computation and intimation for the payment of fees under section 234E of the Act could not be made in purported exercise of power under section 200A of the Act for the period of respective assessment years prior to 01.06.2015. He also pointed out that impugned notices under section 200A of the Act for computation and intimation for payment of fees under section 234E of the Act as they relate to for the period of tax deducted prior to 1st day of June, 2015 were set aside. The learned Authorized Representative for the assessee pointed out that CIT(A) has relied on the decision of the Hon ble High Court of Gujarat in Rajesh Kourani Vs. Union of India (supra) and not relied on the decision of Hon ble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra). However, the decision in favour of assessee is to be applied. For this proposition, he relied on the ratio laid down by the Hon'ble Supreme Court in CIT Vs. M/s. Vegetable Products Ltd. (1973) 88 ITR 192 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered to charge fees under section 234E of the Act. Hence, the intimation issued by the Assessing Officer under section 200A of the Act in all these appeals does not stand and the demand raised by way of charging the fees under section 234E of the Act is not valid and the same is deleted. The intimation issued by the Assessing Officer was beyond the scope of adjustment provided under section 200A of the Act and such adjustment could not stand in the eye of law. 12. The said proposition has been applied in the next bunch of appeals with lead order in Vidya Vardhani Education and Research Foundation in ITA Nos.1887 to 1893/PUN/2016 and others relating to assessment years 2013-14 and 2014-15 vide order dated 13.01.2017 and also in Swami Vivekanand Vidyalaya Vs. DCIT(CPC)-TDS (supra) and Medical Superintendant Rural Hospital Vs. ACIT (CPC)-TDS in ITA Nos.2072 2073/PUN/2017, order dated 21.12.2017, which has been relied upon by the learned Authorized Representative for the assessee. 13. The Hon ble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra) had also laid down similar proposition that the amendment to section 200A of the Act w.e.f. 01.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established principles of interpretation of statute, unless it is expressly provided or impliedly demonstrated, any provision of statute is to be read as having prospective effect and not retrospective effect. Under the circumstances, we find that substitution made by clause (c) to (f) of sub-section (1) of Section 200A can be read as having prospective effect and not having retroactive character or effect. Resultantly, the demand under Section 200A for computation and intimation for the payment of fee under Section 234E could not be made in purported exercise of power under Section 200A by the respondent for the period of the respective assessment year prior to 1.6.2015. However, we make it clear that, if any deductor has already paid the fee after intimation received under Section 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest. 14. The Hon ble High Court thus held that where the impugned notices given by Revenue Department under section 200A of the Act were for the period prior to 01.06.2015, then same were illegal and invalid. Vide para 27, it was further held that the impugned notices under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and raised by charging late filing fees under section 234E of the Act is not valid and the same is deleted. 17. Before parting, we may also refer to the order of CIT(A) in relying on the decision of Hon ble High Court of Gujarat in Rajesh Kourani Vs. Union of India (supra). On the other hand, the learned Authorized Representative for the assessee has pointed out that the issue is settled in favour of assessee by the Hon ble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra). Since we have already relied on the said ratio laid down by the Hon ble High Court of Karnataka, the CIT(A) has mis-referred to both decisions of Hon ble High Court of Karnataka and Hon ble High Court of Gujarat; but the CIT(A) has failed to take into consideration the settled law that where there is difference of opinion between different High Courts on an issue, then the one in favour of assessee needs to be followed as held by the Hon'ble Supreme Court in CIT Vs. M/s. Vegetable Products Ltd. (supra), in the absence of any decision rendered by the jurisdictional High Court. The Hon ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (2015) 54 taxmann.com 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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