TMI Blog2018 (12) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of assessee - ITA Nos.740 & 741/Ind/2014 & ITANo.742/Ind/2017, ITA No.744/Ind/2017, ITA Nos.745 & 763/Ind/2017, ITA Nos.746 to 748/Ind/2017, ITA No.749/Ind/2017, ITA Nos.750/Ind/2017, ITA Nos.751 & 752/Ind/2017, ITA No.754/Ind/2017 AND ITA No.755/Ind/2017 - - - Dated:- 20-12-2018 - MR KUL BHARAT, JUDICIAL MEMBER AND MR MANISH BORAD, ACCOUNTANT MEMBER ITA No.756/Ind/2017, ITA Nos.758 to 760/Ind/2017, ITA Nos.757 761 762/Ind/2017, ITA No.764/Ind/2017, ITA No.765/Ind/2017, ITA No.766/Ind/2017, ITA No.767/Ind/2017, ITA No.825/Ind/2017, ITA No.826/Ind/2017, ITA No.827/Ind/2017, ITA No.828/Ind/2017, ITA No.840/Ind/2017, ITA No.841/Ind/2017, ITA No.842/Ind/2017, ITA Nos.843 844/Ind/2017, ITA No.845/Ind/2017, ITA No.846/Ind/2017, ITA No.848/Ind/2017, ITA No.849/Ind/2017, ITA No.792/Ind/2017, ITA Nos.793 794/Ind/2017, ITA Nos.795 to 807/Ind/2017, ITA Nos.808 to 823/Ind/2017, ITA No. 879, 880 882/Ind/2017, ITA No. 885 to 890/Ind/2017, ITA No. 897 to 904/Ind/2017 ITA No. 906/Ind/2017, ITA No.907/Ind/2017, ITA No. 909 to 918/Ind/2017, ITA No.858/Ind/2017, ITA No. 863 864/Ind/2017, ITA No. 865/Ind/2017, ITA No. 866/Ind/2017, ITA No. 867 to 869/Ind/2017, ITA Nos. 87 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities were justified in levying the late fees u/s 234E of the Act while processing the statement of tax deducted at source u/s 200A of the Act ( before the amendment was brought in w.e.f. 01.06.2015 in the provisions of section 200A of the Act). 3. Brief facts common in all these appeals are that the appellant was required to file the statement of tax deducted at source for the respective quarter but failed to do so within the due date prescribed in the law for filing such quarterly TDS returns. As per the provisions of section 234E of the Act, fee for default in furnishing the statement is leviable if the statement of TDS are not delivered within the time prescribed in sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C of the Act. 4. The revenue authorities have levied the late fees for default in furnishing the statement in the processing of statement of tax deducted at source prepared u/s 200A of the Act. Against the levy of late fee u/s 234E in the statement processed u/s 200A of the Act, appeal was preferred by the assessee(s) for respective quarters for the respective assessment years before Ld. CIT(A) pleading that before the amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of State Bank of India, Genda Chowk and others dated 13.11.2018 wherein the similar issue has been adjudicated and decided in favour of the assessee. 9. Per contra Ld. Departmental Representative (DR) failed to controvert the submissions made by Mr. Sumit Nema, Sr. Counsel for the assessee. 10. We have heard the rival contentions and perused the record placed before us and carefully gone through various judgments referred and relied by the Ld. Counsels for above captioned assessees. 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. 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) after examining similar facts as well as various judicial pronouncements. The revenue authorities failed to controvert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT(A) has held that this decision was I.T.A No. 442/Agra/2017 S.A. No. 01/Agra/2018 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 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ITA No. 2957 to 2963/Ahd/2015 and the decision of the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi ors. Vs Union of India Drs. (2016) 289 CTR (Kar) 602. 7. On the contrary, the Id DR has opposed the submissions and supported the orders of the authorities below. She relied on the decision of the Hon'ble Jurisdictional High Court rendered in 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Bombay High Court in the case of Rashmikant Kundalia Vs. Union of India (2015) 229 Taxman 596 wherein the Hon'ble High Court has decided the nature of demand. The Hon'ble High Court has held that Section 234E of the Act is not punitive in nature but a fee which is a fixed charge for the extra service which the department has to prove due to the late filing of the TDS statements. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra/2017 dtd. 09.04.2018 authored by one of us (the Ld. J.M.). The relevant part of the order is reproduced as follows: 3. Heard. The ld. CIT(A), while deciding the matter against the assessee, has placed reliance on 'Rajesh Kaurani vs. UOI', 83 Taxmann.com 137 (Guj), wherein, it has been held that section 200A of the Act is a machinery provision providing the mechanism for processing a statement 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 obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the assessees as genuine. Accordingly, the orders of the CIT(A) are reversed and the fee so levied under section 234E of the Act is cancelled. 14. We, therefore, respectfully following the above referred decision of the Coordinate Bench consistently holding that in the intimation prepared u/s 200A of the Act up to 31st May 2015, the late filing fee u/s 234E of Act cannot be charged while processing the TDS return/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 decision given by us in the case of State Bank of India, Genda Chowk and others dated 13.11.2018 (supra) are o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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