TMI Blog2018 (12) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of levy of fees u/s 234E of the Act. - Decided in favour of assessee - ITA Nos.727 & 737, 728,735, 736, 738 &739, 782 to 785, 786 to 789, 770 to 772, 619 to 624, 625 to 628, 732, 729 to 731, 733 to 734, 773 to 776/Ind/2017, 517 To 534/Ind/2017 - - - Dated:- 13-11-2018 - Shri Kul Bharat And Shri Manish Borad, JJ. Appellants by Shri Sumit Nema, Sr. Adv. Shri Manish Laddha, CA, Respondent by Shri R.P. Mourya, Sr. DR ORDER PER BENCH: The above captioned bunch of 56 appeals are at the instance of assessee and directed against the orders of Ld. Commissioner of Income Tax(Appeals, Bhopal, (in short CIT(A) ),. As the issue is 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. These bunch of appeals are being represented by two authorized representatives namely, Shri Sumit Nema, Sr. Advocate and Shri Manish Laddha, CA. It was mutually decided that Mr. Sumit Nema, Sr. Advocate shall plead on the common issue raised in these bunch in appeals. From perusal of the grounds we find that only one issue needs to be adjudicated as to whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uj) 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, therefore, no computation for fee for demand or intimation u/s 234E of the Act could have been made for TDS deducted in respective of statements prepared/procured prior to 01.06.2015 and processed u/s 200A of the Act. 8. Per contra Ld. Departmental Representative (DR) failed to controvert the submissions made by Mr. Sumit Nema, Sr. Counsel for the assessee. 9. We have heard the rival contentions and perused the record placed before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 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 assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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