TMI Blog2018 (11) TMI 1714X X X X Extracts X X X X X X X X Extracts X X X X ..... imation 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 sub-section (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. - Decided in favour of assessee - ITA Nos.727 & 737/Ind/2017, ITA Nos.728,735, 736, 738 &739/Ind/2017, ITA Nos.782 to 785/Ind/2017, ITA Nos.786 to 789/Ind/2017, ITA Nos.770 to 772/Ind/2017, ITA Nos.619 to 624/Ind/2018, ITA Nos.625 to 628/Ind/2018 And ITA No. 732/Ind/2017 - - - Dated:- 13-11-2018 - SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA Nos.729 to 731/Ind/2017, ITA Nos.733 to 734/Ind/2017, ITA Nos.773 to 776/Ind/2017, ITA No.517/Ind/2017, ITA Nos.518 519/Ind/2017, ITA Nos.520 521/Ind/2017, ITA Nos.522 523/Ind/2017, ITA Nos.524 525/Ind/2017, ITA Nos.526 527/Ind/2017, ITA Nos.528 529/Ind/2017, ITA Nos.530 531/Ind/2017, ITA No.532 /Ind/2017 And 10.ITA Nos.533 534/Ind/2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. 5. However, assessee failed to succeed in all these 56 appeals before Ld. CIT(A) and now the assessee is in appeal before the Tribunal raising the above referred common issue. 6. At the outset, Shri Sumit Nema, Senior counsel for the assessee submitted that the common issue is squarely covered in favour of the assessee by the following decisions of the Coordinate Bench: 1. Mentor India Limited vs. DCIT (ITANo.738/JP/2016 order dated 16.12.2016) 2. Sudershan Goyal vs. DCIT (TDS) (ITANo.442/Agra/2017 order dated 09.04.2018) 3. State Bank of India, Gwalior vs. CIT(A) (ITANo.03/Ag/2018 order dated 31.05.2018.) 7. Ld. Senior Counsel further submitted that in the above referred decisions of the Tribunal, Judgments of Hon'ble High Court of Karnataka in the case of Fatehraj Singhvi vs. UOI (2016) 73 Taxmann.com 252 (Karn) (HC) favouring the assessee and the judgment of Hon'ble High Court of Gujarat in the case of Rajesh Kaurani vs. UOI (2017) 83 Taxmann.com 137 (Guj) held against the assessee were duly considered and thereafter following the judgment of Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) having been inserted in the section w.e.f. 01.06.2015. Before 01.06.2015, there was no enabling provision in the Act u/s 200A for raising demand in respect of levy of fee u/s 234E. As such, as per the assessee, in respect of TDS statement filed for a period prior to 01.06.2015, no late fee could be levied in the intimation issued u/s 200A of the Act. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.A. No. 01/Agra/2018 the grievance of the assessee is accepted as justified. The order under appeal is reversed. The levy of the fee is cancelled. 12. Similarly Coordinate Jaipur Bench in the case of M/s. Mentor India Ltd. (supra) took the same view favouring the assessee observing as follows: 6. Now the assessee is in appeal before us. In ITA No. 438/JP/2016, the only effective ground is against confirmation of late filing fee of ₹ 48,402/'; charged by the A.O. U/s 234E of the Act. In this regard, the Ld. AR of the assessee has reiterated the arguments as made in the written submissions and has further submitted that the issue is no more res-integra. He placed reliance on the decision of the ITAT, Ahmadabad decision in the case of Perfect Cropscience Pvt. Ltd. Vs DCIT in 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 Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided the issue of vires of Section 234E of the Act. The Hon'ble Karnataka High Court in the case of Fatheraj Singhvi ors. Vs Union of India Ors. (supra) has held that the demand U/s 200A for computation and intimation for the payment of fee U/s 234E could not be made in purported exercise of power U/s 200A for the period of the respective assessment years prior to 1st June, 2015. When the intimation of the demand notices U/s 200A is held to be without authority of law so far as it relates to computation and demand of fee U/s 234E, the question of further scrutiny for testing the constitutional validity of Section 234E would be rendered as an academic exercise. We find that the Hon'ble Jurisdictional High Court in the case of Dundlod Shikshan Geeta Star Hotels Resorts Pvt. Ltd. Vs. DCIT Sansthan Vs. Union of India (supra) has also considered the decision of the Hon'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 extr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the TDS statement for the period prior to 01.06.2015. The counsel for the assessee has rightly contended that in the absence of enabling provisions u/s 200A of the Act, such levy of late fee is not valid relying on Group of SBI and Ors. The decisions in the cases of 'CIT vs. Vatika Township Pvt. Ltd. (2014) 367 ITR 466 (SC), 'Sudarshan Goyal vs DCIT (TDS)' ITA No.442/Agr/2017 and Fatehraj Singhvi Vs. UOI (2016) 289 CTR 0602 (Karn) (HC). The decisions relied on by the Ld. DR are distinguishable on facts, as the issue involved in those cases pertains to interest u/s 201(1) and 201(1A) on the amount of TDS whereas in the present cases the issue were pertains to liability of late fee u/s 234E of the Act for delay in filing TDS statement which was inserted from 01.06.2015. 10. On similar facts, we have decided the same issue in the assessee's own case 'Sudershan Goyal vs. DCIT (TDS)', in ITA No. 442/Agra/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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, if any deductor has already paid the fee after intimation received under Section 200A, the aforesaid view will not permit the Group of SBI and Ors. Deductor to reopen the said question unless he has made payment under protest. 6. In view of the above, respectfully following 'Shri Fatehraj Singhvi and Others' (supra), 'Sibia Healthcare Pvt. Ltd. vs. DCIT (TDS)', order dated 09.06.2015 passed in ITA No.90/ASR/2015, for A.Y.2013-14, by the Amritsar Bench of the Tribunal, and 'Shri Kaur Chand Jain vs. DCIT, CPC (TDS) Ghaziabad', order dated 15.09.2016, in ITA No.378/ASR/2015, for A.Y. 2012-13, the grievance of the assessee is accepted as justified. The order under appeal is reversed. The levy of the fee is cancelled. 11. In the above view, respectfully following 'Shri Fatehraj Singhvi and Ors' (Supra), 'Sibia Healthcare Pvt. Ltd. Vs. DCIT (Supra), 'Shri Kaur Chand Jain vs. DCIT', (Supra), and our own finding in the case of 'Sudershan Goyal' (Supra), we accept the grievance of the assessees as genuine. Accordingly, the orders of the CIT(A) are reversed and the fee so levied under section 234 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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