TMI Blog2020 (3) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... se demand in respect of levy of fees u/s 234E of the Act. CIT(A) erred in confirming the levy of late fees u/s 234E of the Act by the assessing officer. Accordingly findings of ld. CIT(A) in all these appeals are reversed and revenue is directed to delete the levy of fees u/s 234E of the Act in all these 4 cases. Thus, common issue raised in all these appeals are decided in favour of the assessee. - ITA Nos. 492 And 493/Ind/2019, ITA Nos. 534 to 536/Ind/2019, ITA Nos.550 to 559/Ind/2019 - - - Dated:- 19-3-2020 - Kul Bharat, Judicial Member And Manish Borad, Accountant Member For the Appellants : Shri Pankaj Mogra, CA, Ms. Shreya Jain, CA For the Respondent : Shri Ashish Porwal, Sr. DR ORDER PER BENCH: The above captioned appeals are at the instance of respective assessees and are directed against the respective orders of Ld. Commissioner of Income Tax(Appeals), (in short CIT(A) ). As the issue raised in all these appeals are similar, these were heard together and are being disposed of by this common order for the sake of convenience and brevity. 2. From perusal of the grounds we find that only one issue needs to be adjudicated as to whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Social Work others in ITANo.117 of 2019 and others, order dated 20.02.2020. 7. Ld. Counsels further submitted that in the above referred decisions of the Tribunal, Judgments of Hon'ble High Court of Karnataka in the case of Fatehraj Singhvi vs. UOI (2016) 73 Taxmann.com 252 (Karn) (HC) favouring the assessee and the judgment of Hon'ble High Court of Gujarat in the case of Rajesh Kaurani vs. UOI (2017) 83 Taxmann.com 137 (Guj) held against the assessee were duly considered and thereafter following the judgment of Hon'ble Apex Court in the case of CIT vs. Vatika Township Pvt. Ltd. (2014) 367 ITR 466(SC) and the judgment of Apex Court in the case of CIT vs. Vegetable Products ltd. (1973) 88 ITR 192(SC) Hon'ble Tribunal took a view that if there is a cleavage of opinion between different Courts on an issue the one in favour of the assessee needs to be followed. Accordingly, in the above referred decisions of the Tribunal the view favouring the assessee taken by the Hon'ble High Court of Karnataka in the case of Fatehraj Singhvi(supra) has been followed holding that amendment brought in w.e.f. 01.06.2015 in section 200A of the Act is prospective in nature, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transmission Ltd. others in ITA Nos.740/Ind/2017 others,order dated 20.12.2018(supra), Bhupesh Kumar J. Sanghvi others in ITANo.15/Ind/2018 others, order dated 22.01.2019(supra)and Indore School of Social Work others in ITANo.117 of 2019 and others, order dated 20.02.2020 authored by us. Relevant portion of the decision given by us in the case of State Bank of India, Genda Chowk and others dated 13.11.2018 (supra) reads as follows: 9. We have heard the rival contentions and perused the record placed before us. The common issue raised in all these bunches of appeals is that whether the ld. CIT(A) was justified in confirming the levy of late fee u/s 234E of the Act in the statement of tax deducted at source processed u/s 200A of the Act, even when the amendment brought in the Finance Act 2015 w.e.f. 01.06.2015 paved the way for levying the fee u/s 234E of the Act in the statement processed u/s 200A of the Act. 10. We find that the above issue has consistently being adjudicated by the Coordinate Bench of the Tribunal and consistent view has been taken that the amendment brought in the Finance Act 2015 w.e.f. 01.06.2015 in clause (c),(d) (e) of sub-section (1) of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctional High Court qua the assessee. 5. In 'Shri Fatehraj Singhvi and Others' (supra) it has been held, inter alia, as follows: 22. It is hardly required to be stated that, as per the well established principles of interpretation of statute, I.T.A No. 442/Agra/2017 S.A. No. 01/Agra/2018 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. 6. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has decided the validity of section 234E, but has not decide the issue of power of AO for levy of tax under section 234E in the judgment rendered in the case of M/s. Dundlod Shikshan Sansthan and Others (supra) as relied by ld. CIT (A). We have considered the recent decision of Hon'ble Karnataka High Court in the case of Shri Fatheraj Singhvi Ors (supra) wherein the issue of levy of fees u/s 234E on statements processed u/s 200A before 01.06.2015 has been categorically discussed by the Hon'ble High Court and in para 24 of the said order it was held that no demand for fee u/s 234E can be made in intimation issued for TDS deducted u/s 200A before Geeta Star Hotels Resorts Pvt. Ltd. Vs. DCIT 01.06.2015 . We have also gone through the judgment of Hon'ble Supreme Court in the case of CIT vs. Vatika Township Pvt. Ltd. (supra) wherein the Hon'ble Apex Court has discussed in detail the general principle of concerning retrospectively and held that unless contrary intention appears, a legislation is presumed not to have a retrospective operation. Respectfully following the above judgments of Hon'ble Supreme Court and Hon'ble Karnataka High Court, we set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in the case of CIT Vs. Vatika Township (supra), the demand so raised are directed to be deleted. Similarly identical findings have also been given in all the appeals of other assessment years. 13. We further find that the Coordinate Agra Bench in the case of State Bank of India, Gwalior (supra) again decided in favour of the assessee by following the decision in case of Sudarshan Goyal (supra) observing as follows: 8. Heard the rival contention and perused the material relevant. We find that while deciding the issue against the appellant assessee the ld. CIT(A) has placed reliance on 'Rajesh Kaurani vs. Union of India', 83 Taxmann.com 137 (Guj.) wherein it was held that Section 200A of the Act is a machinery provision providing the mechanism for processing a TDS statement of deduction of tax at source and for making adjustment. The Ld. CIT(A) has further held that this decision was delivered after considering numerous ITAT and High Court decisions and therefore this decision in 'Rajesh Kaurani' (Supra), holds the fields. 9. It is seen that prior 01.06.2015, there was no enabling provision in the Act u/s 200A for raising demand in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le observing so, the ld. CIT(A) has failed to take into consideration the settled law that where there is a cleavage of opinion between different High Courts on an issue, the one in favour of the assessee needs to be followed. It has so been held by the Hon'ble Supreme Court in 'CIT vs. Vegetable Products Ltd.', 88 ITR 192 (SC). It is also not a case where the decision against the assessee has been rendered by the Jurisdictional High Court qua the assessee. 5. In 'Shri Fatehraj Singhvi and Others' (supra) it has been held, inter alia, as follows: 22. It is hardly required to be stated that, as per the well 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 purport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Madhya Pradesh Power Transmission Ltd. others in ITA Nos.740/Ind/2017 others, order dated 20.12.2018(supra), Bhupesh Kumar J. Sanghvi others in ITANo.15/Ind/2018 others, order dated 22.01.2019(supra) and Indore School of Social Work others in ITANo.117 of 2019 and others, order dated 20.02.2020 are of the opinion that in the given set of facts of the instant appeals wherein fee u/s 234E of the Act was levied in the statements processed u/s 200A of the Act before 01.06.2015 i.e. before the amendment brought into effect from 01.06.2015 in section 200A of the Act thereby enabling the revenue authorities to raise demand in respect of levy of fees u/s 234E of the Act. Ld. CIT(A) erred in confirming the levy of late fees u/s 234E of the Act by the assessing officer. Accordingly findings of ld. CIT(A) in all these appeals are reversed and revenue is directed to delete the levy of fees u/s 234E of the Act in all these 4 cases. Thus, common issue raised in all these appeals are decided in favour of the assessees. 13. In the result, all these appeals at the instance of assessee(s)are allowed. Order was pronounced in the open court on 19.03.2020. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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