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TMI Blog2019 (8) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... are taken up together for adjudication. 2. The assessee has raised the following grounds: - "1. On the given facts, circumstances, ad judicial pronouncements Hon. CIT(A) erred in upholding the order of Ld. AO of levying late filing fee under section 234E, such confirmation of penalty is bad in law and liable to be deleted. 2. on the given facts circumstances, and judicial pronouncements Hon. CIT(A) erred in confirmation the penalty for late filing under section 234E, for a period relating to financial year 2014-15, even though no power was conferred on the AO as per provisions of Section 200A, hence levy of such fee/penalty is without jurisdiction and bad in law and liable to be deleted. 3. the appellant prays to add, amend and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 272A(2)(k) of the Act provides for levy of penalty of Rs. 100 per day for each day of default in filing TDS inserted w.e.f. 01.04.2005. It is contended that in the circumstances when the TDS statement has been filed upto 29.05.2015, therefore, in the said circumstances, no late fee is leviable in accordance with law and in support of these contentions. The Ld. Representative of the assessee has placed reliance upon the decision of Hon'ble Karnataka High Court in case of titled as Fatheraj Singhvi Vs. Union of India (2016)(73 taxmann.com 252) (Kar) and the decision of Hon'ble ITAT in ITA. No.3324/M/2015 dated 31.03.2017 titled as Kamala Enterprises Vs. ITO (TDS) and the decision of the Hon'ble ITAT in ITA. No.652/M/2016 dated 18.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in the case of Gajanan Constructions and others, ITA Nos. 1292 & 1293/PN/2015 dated 23.09.2016. In so far as the reliance placed by the CIT(A) on the judgment of the Hon'ble Bombay High Court is concerned, the same is quite misplaced. In the said case, the Hon'ble High Court has merely upheld the constitutional validity of Section 234E of the Act; and, as has been rightly noted by the Pune bench, the Hon'ble Bombay High Court was not dealing with the issue as to whether prior to 01.06.2015, while processing the TDS statement under Section 200A of the Act, the late fee envisaged under Section 234E of the Act, could be levied or not. Thus, reliance placed by the Ld. D.R. on the judgment of the Hon'ble Bombay High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But in the initial provisions of section 200A, there was no reference for fee payable under section 234E. On 1.7.2012, section 234E provided for levying of fee of Rs. 200/- per day for each day of default in filing the TDS. We find merit in the argument of the ld.AR that the provisions of section 200A(1)(c) of the Act there was no authority or competence or jurisdiction on the part of the concerned officer or department to compute or determine the fee under section 234E in respect of assessment which falls prior to 1.6.2015 as the said provisions was also brought on the statute book w.e.f. 1.6.2015 and consequently no demand u/s 234E should have been determined and raised upon the assessee. In the case of Fatheraj Singhvi V/s Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of law, we are inclined to set aside the order of the ld.CIT(A) on this issue and direct the AO to delete the late filing fee u/s 234E of the Act of Rs. 8,200/-. We would like to mention that the decision of the Hon'ble jurisdictional High Court was rendered on different context that the issue of levy of late filing under section 234E of the Act was not appealable and therefore not onerous. Since the AO has no power to impose ate filing fee, we set aside the order of ld. CIT(A) and direct the AO to delete the fee of Rs. 8,200/-." 7. However, the Hon'ble ITAT has also passed the order in ITA. No.442/Agra/2017 dated 09.04.2015 titled as Sudarshan Goyal Vs. DCIT (TDS) Ghaziabad in which it has been specifically held that the TDS statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, we find that substitution made by clause (c) to (f) of sub-section (1) of Section 200A can be read as having prospective effect and not having retroactive character or effect. Resultantly, the demand under Section 200A for computation and intimation for the payment of fee under Section 234E could not be made in purported exercise of power under Section 200A by the respondent for the 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." 6. In view of the above, respectfully following 'Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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