TMI Blog2017 (3) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... /PUN/2016, 1797/PUN/2016 & 1798/PUN/2016, 1802/PUN/2016 To 1804/PUN/2016, 1809/PUN/2016 To 1812/PUN/2016, 1857/PUN/2016, 1858/PUN/2016 - - - Dated:- 21-3-2017 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM 1859/PUN/2016, 1860/PUN/2016, 1861/PUN/2016, 1862/ PUN/2016, 1950/PUN/2016 To 1953/PUN/2016, 1977/PUN/2016 1978/PUN/2016, 1982/PUN/2016, 2227/PUN/2016, 2233/PUN/2016, 2358/PUN/2016, 2363/PUN/2016 To 2365/PUN/2016, 2367/PUN/2016, 2375/PUN/2016 To 2381/PUN/2016, 2383/PUN/2016, 2385/PUN/2016 To 2387/PUN/2016, 2484/PUN/2016 To 2487/PUN/2016, 2488/PUN/2016, 2515/PUN/2016 To 2517/PUN/2016, 2521/PUN/2016 To 2525/PUN/2016, 2564/PUN/2016 To 2566/PUN/2016, 2764/PUN/2016, 2799/PUN/2016 To 2801/PUN/2016, 2804/PUN/2016, 2806/PUN/2016, 2808/PUN/2016 To 2812/PUN/2016, 2884/PUN/2016, 2887/PUN/2016, 2889/PUN/2016 2890/PUN/2016 For The Appellant : Shri P.S. Shinge, Shri Bharat Patel and Shri Vishnu D. Bhutada, Shri Vilas P. Rudra, Shri Vinayak Gokhale, Shri Suhas Bora, Shri R. Ramakrishnan, Shri M.K. Kulkarni For The Respondent : Shri Suhas Kulkarni ORDER PER SUSHMA CHOWLA, JM: This bunch of appeals filed by different assessee are against respective order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us was that in such circumstances where the said amendment was introduced w.e.f. 01.06.2015 and there was nothing to suggest that the said amendment was clarificatory or retrospective in nature, then no such late fees could be charged under section 234E of the Act in respect of TDS statements which were filed prior to 01.06.2015. 6. Briefly, in the facts of the case, the assessee was required to deduct tax at source out of payments made on account of interest for the respective quarters in the accounting periods 2012-13, 2013-14 and 2014-15. The assessee was required to file quarterly TDS returns intimating the tax deducted at source from various payments made in each of the quarter, as per section 200(3) of the Act. Further, the requirement of the Act was to file the said TDS returns within stipulated period as provided under the section. Admittedly, in the present appeals, the TDS returns were filed belatedly. The Assessing Officer while processing the TDS returns issued intimation to the respective assessee under section 200A of the Act and levied late filing fees under section 234E of the Act. 7. In appeal, the CIT(A) held that the Assessing Officer was empowered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit of the Central Government or as the Board directs. (2A) In case of an office of the Government, where the sum deducted in accordance with the foregoing provisions of this Chapter or tax referred to in sub-section(1A) of section 192 has been paid to the credit of the Central Government without the production of a challan, the Pay and Accounts Officer or the Treasury Officer or the Cheque Drawing and Disbursing Officer or any other person, by whatever name called, who is responsible for crediting such sum or tax to the credit of the Central Government, shall deliver or cause to be delivered to the prescribed income-tax authority, or to the person authorised by such authority, a statement in such form, verified in such manner, setting forth such particulars and within such time as may be prescribed. (3) Any person deducting any sum on or after the 1st day of April, 2005 in accordance with the foregoing provisions of this Chapter or, as the case may be, any person being an employer referred to in sub-section (1A) of section 192 shall, after paying the tax deducted to the credit of the Central Government within the prescribed time, prepare such statements for such peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also upon an employer who is making deduction out of the payments made to the employees, then sub-section (3) requires that the deductor is to prepare a statement for such period as may be prescribed, which is to be delivered to the prescribed authority, in such form and verified and setting forth such particulars as may be prescribed. The said statement is to be delivered within such time as may be prescribed. 19. Rule 31A of the Income Tax Rules, 1962 (in short the Rules ) provides that every person who is responsible for deduction of tax under Chapter XVIIB shall in accordance with the provisions of section 200(3) of the Act, deliver or cause to be delivered, the quarterly statements to the Director General of Income Tax (Systems) or the persons authorized by them i.e. in respect of deductions under various provisions of the Chapter XVIIB. The Rule further provides that the statements referred to in sub-rule (1) are to be delivered quarterly and the stipulated period of due date of filing the said statement in respect of deductor being an office of the Government and the deductor being other than Government, are provided. The sub-rule (3) of Rule 31A of the Rules further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement; (ii) in respect of rate of deduction of tax at source, where such rate is not in accordance with the provisions of this Act. (2) For the purposes of processing of statements under sub-section (1), the Board may make a scheme for centralised processing of statements of tax deducted at source to expeditiously determine the tax payable by, or the refund due to, the deductor as required under the said subsection. 20. Section 200A of the Act lays down the manner in which the statements of tax deducted at source are to be processed for issuing the intimation. First of all, the sums deductible under the Chapter are to be computed and interest, if any, shall be computed on the basis of such sums deductible as computed in the statements as per clause (a) and (b) under section 200A(1) of the Act. Clauses (c) to (f) reproduced above were substituted for clauses (c) to (e) by the Finance Act, 2015 w.e.f. 01.06.2015. Prior to the substitution, clauses (c) to (e) read as under:- (c) the sum payable by, or the amount of refund due to, the deductor shall be determined after adjustment of amount computed under clause (b) against any amount paid under section 200 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r causing to be delivered a statement in accordance with section 200(3) of the Act or proviso to section 206C(3) of the Act. In other words, in case the assessee has defaulted in not delivering the statement or causing to deliver the statement within time prescribed, then he is liable to pay the fees which is so prescribed under the Act and such fees shall not exceed the amount of tax deductible or collectable at source but the same has to be paid along with statement which is to be delivered under the provisions of section 200(3) of the Act. Though the statement of tax deducted at source has to be furnished by the deductor, no doubt, under section 200 of the Act, but the same has to be processed by the prescribed authority as per provisions of section 200A of the Act. In case there is any variation in the tax, sum deductible under the Chapter and / or their payment, the Assessing Officer is empowered to make adjustments in this regard and also reject incorrect claim made by the deductor which is apparent from the information in the statement filed by the deductor. Further, the Incometax authority is authorized to charge interest, if any, and the same shall be computed on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax deducted at source in time and if not so, then with interest and consequently, where the tax was not paid in time and interest was not paid in time and then, where the statement of tax deducted at source could not be filed before the prescribed authority within stipulated time, the assessee was liable to levy of fees under section 234E of the Act. However, in case any default occurs due to the non-payment of fees by the assessee in this regard, then the provisions which has to be considered is section 200A(1)(c) of the Act. The power to charge / collect fees as per provisions of section 234E of the Act was vested with the prescribed authority under the Act only on substitution of earlier clause (c) to section 200A of the Act by the Finance Act, 2015 w.e.f. 01.06.2015. Once any provision of the Act has been made applicable from a respective date, then the requirement of the statute is to apply the said provisions from the said date. 25. In respect of the issue raised before us, it is clear that the prescribed authority has been vested with the power to charge fees under section 234E of the Act only with regard to levy of fees by the substitution made by Finance (No.2) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in the course of intimation under section 200A of the Act and in the absence of any other provisions enabling the demand in respect of this levy having been pointed out, no such levy could be effected. The said proposition has been applied in various decisions of different Benches of Tribunal. Reference was made to the decisions of Chennai Bench of Tribunal in G. Indirani Vs. DCIT (supra), Ahmedabad Bench of Tribunal in M/s. Globe Ecologistics Ltd. Vs. DCIT in ITA Nos.2689-2691/Ahd/2015, ITA No.2692/Ahd/2015, relating to assessment year 2014-15, ITA No.2693/Ahd/2015, relating to assessment year 2013-14 and ITA Nos.2694- 2695/Ahd/2014, relating to assessment year 2013-14, vide consolidated order dated 26.11.2015 and Chandigarh Bench of Tribunal in M/s. Khanna Watches Ltd. Vs. DCIT in ITA Nos.731 to 735/CHD/2015, relating to assessment years 2014-15 2013-14, order dated 29.10.2015. 27. While deciding the present bunch of appeals, the Revenue had placed reliance on the ratio laid down by the Hon ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) wherein, the constitutional validity of section 234E of the Act was challenged. The Hon ble High Court note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided for the provisions of section 234E of the Act, the same cannot be said to be onerous and section 234E of the Act was held to be constitutionally valid. The constitutional validity of provisions of section 234E of the Act has also been upheld by the Hon ble Rajasthan High Court in M/s. Dundlod Shikshan Sansthan Anr. Vs. Union of India and Ors (supra). 28. In view of the above said ratio laid down by the Hon ble Bombay High Court, the case of the learned CIT-DR before us was that there is no merit in the present set of appeals filed by the assessee as the Hon ble High court has laid down that no appeal is provided from an order passed under section 234E of the Act and the same merits to be dismissed at the outset. In this regard, he has raised two issues that (a) the appeal filed by the assessee is not maintainable and also (b) there is no merit in the claim of the assessee that the Assessing Officer is not empowered to charge fees under section 234E of the Act before insertion of clause (c) to section 200A(1) of the Act by the Finance Act, 2015 w.e.f. 01.06.2015. The learned Authorized Representative for the assessee on the other hand, drew our attention to the Memo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er processing of TDS statement and also provided that failure to pay tax specified in the intimation shall attract levy of interest as per provisions of section 220(2) of the Act. Further, amendments were also made in respect of the scheme of payment of TDS / TCS by the Government, deductor / collector which are not relevant for deciding the issue in the present appeal and hence, the same are not being referred to. The Finance Bill further provided that the amendment would take effect from 01.06.2015. 29. The perusal of Memo explaining the provision relating to insertion of clause (c) to section 200A of the Act clarifies the intention of Legislature in inserting the said provision. The provisions of section 234E of the Act were inserted by the Finance Act, 2012, under which the provision was made for levy of fees for late furnishing TDS / TCS statements. Before insertion of section 234E of the Act, the Finance (No.2) Act, 2009 had inserted section 200A in the Act, under the said section, mechanism was provided for processing of TDS statements for determining the amount payable or refundable to the deductor, under which the provision was also made for charging of interest. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2015. 31. Another aspect of the issue is whether the amendment brought in by the Finance Act, 2015 w.e.f. 01.06.2015 by way of insertion of clause (c) to section 200A(1) of the Act is clarificatory or is prospective in nature and is not applicable to the pending assessments. Undoubtedly, the provisions of section 234E of the Act were inserted by the Finance Act, 2012, under which the liability was imposed upon the deductor in such cases where TDS statements / returns were filed belatedly to pay the fees as per said section. However, in cases, where the assessee has failed to deposit the said fees, then in order to enable the Assessing Officer to collect the said fees chargeable under section 234E of the Act, it is incumbent upon the Legislature to provide mechanism for the Assessing Officer to charge and collect such fees. In the absence of enabling provisions, the Assessing Officer while processing the TDS statements, even if the said statements are belated, is not empowered to charge the fees under section 234E of the Act. The amendment was brought in by the Finance Act, 2015 w.e.f. 01.06.2015 and such an amendment where empowerment is given to the Assessing Officer to le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment is prospective in nature and cannot be applied to processing of TDS returns / statements prior to 01.06.2015. 33. We further find that in recent judgment dated 26.08.2016, the Hon ble Karnataka High Court in Writ Appeal Nos.2663-2674/2015(T-IT) Ors in Sri Fatheraj Singhvi Ors Vs. Union of India Ors has quashed the intimation issued under section 200A of the Act levying the fees for delayed filing the TDS statements under section 234E of the Act. The Hon ble High Court notes that the Finance Act, 2015 had made amendments to section 200A of the Act enabling the Assessing Officer to make adjustments while levying fees under section 234E of the Act was applicable w.e.f. 01.06.2015 and has held that it has prospective effect. Accordingly, the Hon ble High Court held that intimation raising demand prior to 01.06.2015 under section 200A of the Act levying section 234E of the Act late fees is not valid . However, the Hon ble High Court kept open the issue on constitutional validity of section 234E of the Act. We have already referred to the decision of Hon ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) in this regard, wherein the constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to section 40(a)(ia) of the Act by the Finance Act, 2010, under which certain relaxations were given to the application of said section and it was held that the same applies retrospectively to earlier years. However, in the present set of appeals, the issue is against the provision under which a new enabling power is being given to charge fees under section 234E of the Act while processing TDS returns / statements and such power is to be applied prospectively. In any case, the Parliament itself has recognized its operation to be prospective in nature while introducing clause (c) to section 200A(1) of the Act and hence, cannot be applied retrospectively. Similarly, reliance placed upon by the learned CIT-DR on the ratio laid down by the Hon ble Supreme Court in Govinddas Vs. ITO (supra) is misplaced because of the distinguishable facts and issues. 10. The issue arising in the present appeals is identical to the issue before the Tribunal in bunch of appeals and where the amendment to section 200A(1) of the Act is procedural in nature, then the Assessing Officer while processing the TDS statements / returns in the present set of appeals for the period prior to 01.06.2015, was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer and intimation is generated under which, if any amount is found to be payable, then such intimation generated after processing of TDS returns is subject to rectification under section 154 of the Act and / or is also appealable under section 246A of the Act, since the demand issued by the Assessing Officer is deemed to be a notice of payment under section 156 of the Act. Since the intimation in question issued by the Assessing Officer was appealable order under section 246A(1)(a) of the Act, therefore, the CIT(A) should have examined the legality of adjustment made under intimation issued under section 200A of the Act. The CIT(A) has rejected the present set of appeals on the surmise that first of all, no appeal is provided against the intimation issued under section 200A of the Act. Further, the CIT(A) has also decided the issue on merits and the assessee is in appeal before us on both these grounds. Vis- -vis the first issue of maintainability of appeal against the intimation issued under section 200A of the Act, we hold that such intimation issued by the Assessing Officer after processing the TDS returns is appealable. The demand raised by way of charging of fees under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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