TMI Blog2018 (11) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ome were filed after June, 2015 and even order levying late filing fees under section 234E of the Act was passed after June, 2015. The grounds of appeal raised by assessee are thus, allowed. - ITA No. 1167/PUN/2018 To 1171/PUN/2018 - - - Dated:- 6-11-2018 - 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 five appeals filed by assessee are against consolidated order of CIT(A)-3, Nashik, dated 20.04.2018, relating to different assessment years against orders passed under sections 200A r.w.s. 154 of the Income-tax Act, 1961 (in short the Act ). 2. This bunch of appeals relating to the same assessee on similar issue were heard together and are being disposed of by this consolidated order for the sake of convenience. However, in order to adjudicate the issue, we make reference to the facts and issues in ITA No.1167/PUN/2018. 3. The assessee in ITA No.1167/PUN/2018 has raised the following grounds of appeal:- The following grounds are taken without prejudice to each other On facts and in law, 1] The learned CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, wherein TDS returns were filed after June, 2015, even intimation was issued after June, 2015. 8. The second issue raised is against order of CIT(A) in dismissing appeals being filed after delay. The learned Authorized Representative for the assessee pointed out that there is no delay in filing the appeals before the CIT(A) since the appeals were filed against order issued under section 154 of the Act and not against intimation issued under section 200A of the Act. The CIT(A) has erred in computing the period for filing the appeals from the date of issue of intimation and not from the date of issue of order under section 154 of the Act. He further pointed out that appeals were filed in time from the date of order under section 154 of the Act. 9. We find that the issue raised in the present bunch of appeals is similar to issue before Tribunal of levy of late filing fees under section 234E of the Act for the period prior to 01.06.2015 and it also addressed the delay in filing the appeals as alleged by CIT(A) while counting the period of filing appeals from the date of issue of intimation under section 200A of the Act and not from the date of issue of order under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 01.06.2015 has prospective effect and is not applicable for the period of respective assessment years prior to 01.06.2015. The relevant findings of the Hon ble High Court are in paras 21 and 22, which read as under:- 21. However, if Section 234E providing for fee was brought on the state book, keeping in view the aforesaid purpose and the intention then, the other mechanism provided for computation of fee and failure for payment of fee under Section 200A which has been brought about with effect from 1.6.2015 cannot be said as only by way of a regulatory mode or a regulatory mechanism but it can rather be termed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 200A of the Act were for computation and intimation for payment of fees under section 234E of the Act as they relate for the period of tax deducted at source prior to 01.06.2015 were being set aside. 15. In other words, the Hon ble High Court of Karnataka explained the position of charging of late filing fees under section 234E of the Act and the mechanism provided for computation of fees and failure for payment of fees under section 200A of the Act which was brought on Statute w.e.f. 01.06.2015. The said amendment was held to be prospective in nature and hence, notices issued under section 200A of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 (Bom) had decided the constitutional validity of provisions of section 234E of the Act and had held them to be ultra vires but had not decided the second issue of amendment brought to section 200A of the Act w.e.f. 01.06.2015. In view thereof, respectfully following the ratio laid down by the Hon ble High Court of Karnataka and Pune Bench of Tribunal in series of cases, we delete the late filing fees charged under section 234E of the Act for the TDS returns for the period prior to 01.06.2015. 18. Further before parting, we may also refer to the order of CIT(A) in the case of Junagade Healthcare Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on merits in favour of assessee. Accordingly, the grounds of appeal raised by assessee in all appeals are allowed. 10. Since the issue arising in the present bunch of appeals is similar to the issue before the Tribunal in the cases of Medical Superintendent Rural Hospital and Junagade Healthcare Pvt. Ltd. (supra) and we have decided both the issues in favour of assessee, we hold that the assessee is not liable for levy of late filing charges under section 234E of the Act for the period prior to June, 2015 in the absence of amendment to section 200A of the Act, which was brought on Statute from 01.06.2015. Consequently, we also hold that the appeals filed by assessee were in time since the period has to be reckoned from the date of order under section 154 of the Act and not from the date of issue of intimation under section 200A of the Act. Accordingly, we delete late filing fees levied under section 234E of the Act for the period prior to June, 2015 though the returns of income were filed after June, 2015 and even order levying late filing fees under section 234E of the Act was passed after June, 2015. The grounds of appeal raised by assessee are thus, allowed. 11. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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