TMI Blog2020 (2) TMI 1669X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 165 appeals are reversed and revenue is directed to delete the levy of fees u/s 234E of the Act in all these 165 cases. Thus, common issue raised in these bunch of appeals is decided in favour of the assessees. - ITA Nos. 117 to 120/Ind/2019, 121 to 125/Ind/2019, 138/Ind/2019, 141 to 143/Ind/2019, 145 & 146/Ind/2019, 147 & 148/Ind/2019, 159 to 164/Ind/2019, 186 to 190/Ind/2019, 191 & 192/Ind/2019, 193/Ind/2019 AND OTHERS. - - - Dated:- 20-2-2020 - HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA Nos. 63 to 66/Ind/2019, 83 to 85/Ind/2019, 97 to 99/Ind/2019, 205/Ind/2019, 208/Ind/2019, 226 to 229/Ind/2019, 253 254/Ind/2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before Ld. CIT(A) pleading that before the amendment was brought in by the Finance Act, 2015 w.e.f. 01.06.2015, the revenue authorities were not having the power to levy the late fees u/s 234E of the Act in the statement processed u/s 200A of the Act. 5. However, assessee failed to succeed in all these 165 appeals before Ld. CIT(A) and now are in appeals before the Tribunal raising the above referred common issue. 6. At the outset, Ld. counsels for respective assessees submitted that the common issue is squarely covered in favour of the assessee by the following decisions of the Coordinate Bench: 1. Mentor India Limited vs. DCIT (ITANo.738/JP/2016 order dated 16.12.2016) 2. Sudershan Goyal vs. DCIT (TDS) (ITANo.442/Agra/2017 order dated 09.04.2018) 3. State Bank of India, Gwalior vs. CIT(A) (ITANo.03/Ag/2018 order dated 31.05.2018.) 4. State Bank of India, Genda Chowk and others vs. DCIT(TDS), (ITANos. 727 737/Ind/2017 and others dated 13.11.2018.) 5. M/s. Madhya Pradesh Power Transmission Ltd. others in ITA Nos.740/Ind/2017 others, order dated 20.12.2018 6. Bhupesh Kumar J. Sanghvi others in ITANo.15/Ind/2018 others, order dated 22.01.2019. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. From perusal of the above issue we find that the same has been adjudicated by us in the case of State Bank of India, Genda Chowk and others dated 13.11.2018(supra) and M/s. Madhya Pradesh Power Transmission Ltd. others in ITA Nos.740/Ind/2017 others, order dated 20.12.2018(supra) and Bhupesh Kumar J. Sanghvi others in ITANo.15/Ind/2018 others, order dated 22.01.2019(supra) after examining similar facts as well as various judicial pronouncements. The revenue authorities failed to controvert the contention of Ld. counsels for the assessees that the common issue raised in all these bunch of 165 appeals are squarely covered in favour of assessees by the decisions in the case of State Bank of India, Genda Chowk and others dated 13.11.2018(supra) and M/s. Madhya Pradesh Power Transmission Ltd. others in ITA Nos.740/Ind/2017 others, order dated 20.12.2018(supra) and Bhupesh Kumar J. Sanghvi others in ITANo.15/Ind/2018 others, order dated 22.01.2019(supra) authored by us. Relevant portion of the decision given by us in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), 'Shri Fatehraj Singhvi and Others vs.UOI', 73 Taxmann.com 252 (Ker), as also admitted by the ld. CIT(A) himself, decides the issue in favour of the assessee. The only objection of the ld. CIT(A) is that this decision and others to the same effect have been taken into consideration by the Hon'ble Gujarat High Court while passing 'Rajesh Kaurani' (supra). However, while 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, I.T.A No. 442/Agra/2017 S.A. No. 01/Agra/2018 unless it is expressly provided or impliedly demonstrated, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Dundlod Shikshan Sansthan Vs. Union of India (2015) 63 taxmann.com 243 (Raj.). 8. We have heard the rival contentions of both the parties, perused the material available on the record and also gone through the orders of the authorities below. Recently the Coordinate Bench of Jaipur ITAT in the case of M/s. Sandeep Jhanwar Advisory Services Pvt. Ltd. Vs. The TDS CPC, Gaziabad in ITA No. 722 723/JP/2016 for the A.Y. 2013-14 / Q-3 4 has allowed the appeal of the assessee by observing as under:- 3.5. We have heard rival contentions, perused the material available on record and gone through the orders of the authorities below. We have also gone through the case laws relied upon by the ld. Counsel. We find merit into the contention of ld. Counsel that he jurisdictional High Court 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements. Hence from both the decisions relied upon by the ld. DR, the issue of power of imposing late fee is not decided but the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi ors. Vs. Union of India Ors. (supra) has decided the issue in favour of the assessee and held that the late fee U/s 234E of the Act has raised vide impugned demand notice U/s 200A of the Act. We find force in the contention of the ld. AR of the assessee. If there is conflicting views taken by the two Hon'ble Courts, then the view, which favours the assessee should be adopted. In this regard, the ld AR of the assessee has relied on the decision of the Hon'ble Supreme Court in the case of CIT Vs. Vatika Township P. Ltd. (2014) 367 ITR 466 (SC). In view of the decision of the Hon'ble Supreme 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of deduction of tax at source and for making adjustments. The ld. CIT(A) has held that this decision was delivered after considering numerous ITAT/High Court decisions and so, this decision in 'Rajesh Kaurani' (supra) holds the field. 4. We do not find the view taken by the ld. CIT(A) to be correct in law. As against 'Rajesh Kaurani' (supra), 'Shri Group of SBI and Ors. Fatehraj Singhvi and Others vs.UOI', 73 Taxmann.com 252 (Ker), as also admitted by the ld. CIT(A) himself, decides the issue in favour of the assessee. The only objection of the ld. CIT(A) is that this decision and others to the same effect have been taken into consideration by the Hon'ble Gujarat High Court while passing 'Rajesh Kaurani' (supra). However, while 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 rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /statement because enabling clause (c) of subsection (1) of section 200A have been inserted w.e.f. 01.06.2015 and before this amendment w.e.f 01.06.2015 there was no enabling provision in the Act u/s 200A of the Act for raising demand in respect of levy of fees u/s 234E of the Act. 15. We are of the considered opinion that in all these 56 appeals the ld. CIT(A) erred in confirming the levy of late fee u/s 234E of the Act. We, accordingly, set aside the findings of Ld. CIT(A) in all these appeals and allow the common issue in favour of the assessee. 12. We, therefore, in the given facts and circumstances of the case as well as following the decisions given by us in the case of State Bank of India, Genda Chowk and others dated 13.11.2018 (supra) and M/s. Madhya Pradesh Power Transmission Ltd. others in ITA Nos.740/Ind/2017 others, order dated 20.12.2018(supra) and Bhupesh Kumar J. Sanghvi others in ITANo.15/Ind/2018 others, order dated 22.01.2019(supra) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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