TMI Blog2019 (6) TMI 1412X X X X Extracts X X X X X X X X Extracts X X X X ..... de and revenue is directed to delete the levy of fees u/s 234E of the Act in all these 29 cases. Thus, common issue raised in this bunch of 29 appeals is decided in favour of the assessee. - ITA No.573/Ind/2018, ITA No.575 & 576/Ind/2018, ITA No.890/Ind/2018, , ITA No.891/Ind/2018, ITA No.892/Ind/2018, ITA No.893/Ind/2018, ITA No.565/Ind/2018, ITA No.564/Ind/2018, ITA No.938, 939, 940 & 944/Ind/2018, ITA No.945 to 949/Ind/2018 - - - Dated:- 6-6-2019 - SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA No.952/Ind/2018, ITA No.597/Ind/2018, ITA No.598/Ind/2018, ITA No.609/Ind/2018, ITA No.651/Ind/2018, ITA No.677/Ind/2018, ITA No.678/Ind/2018, ITA No.941 to 943/Ind/2018 And ITA No.602/Ind/2018 For The Appellant : Shri Anil Kamal Garg, Arpit Gaur, Subhash Jain, Pinkesh Ghatia, Rajesh Mehta, S.N. Agrawal Smt. Shreya Jain, A.Rs and Written submission For The Respondent : Shri R.S. Ambedker, Sr. D.R. ORDER PER BENCH: The above captioned bunch of 29 appeals are at the instance of respective assessees and are directed against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .04.2018) 3. State Bank of India, Gwalior vs. CIT(A) (ITANo.03/Ag/2018 order dated 31.05.2018.) 4. State Bank of India, GendaChowk and others vs. DCIT(TDS), (ITANos. 727 737/Ind/2017 and others dated 13.11.2018.) 5. M/s. Madhya Pradesh Power Transmission Ltd. others Vs. DCIT (TDS) (ITA Nos.740 741/Ind/2014 and others dated 20.12.2018). 7. Ld. Counsels 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'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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansmission Ltd. and others Vs. DCIT (TDS) dated 20.12.2018 (supra) authored by us. Relevant portion of the decision given by us in the case of State Bank of India, Genda Chowk and others dated 13.11.2018 (supra) reads as follows: 9. We have heard the rival contentions and perused the record placed before us. 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. 10. We find that the above issue has consistently being adjudicated by the Coordinate Bench of the Tribunal and consistent view has been taken that the amendment brought in the Finance Act 2015 w.e.f. 01.06.2015 in clause (c),(d) (e) of sub-section (1) of section 200A of the Act are prospective in nature, therefore, fee u/s 234E cannot be levied in the statement processed u/s 200A up to 31.05.2015. 11. Coordinate Agra B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. DundlodShikshanSansthan 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 ShriFatherajSinghvi 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 that no demand for fee u/s 234E can be made in intimation issued for TDS deducted u/s 200A before Geeta Star Hotels Resorts Pvt. Ltd. Vs. DCIT 01.06.2015 . We have also gone through the judgment of Hon'ble Supreme Court in the case of CIT vs. Vatika Township Pvt. Ltd. (supra) wherein the Hon'ble Apex Court has discussed in detail the general principle of concerning retrospectively and held that unless contrary intention appears, a legislation is presumed not to have a retrospective operation. Respectfully following the above judgments of Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 asfollows: 8. Heard the rival contention and perused the material relevant. We find that while deciding the issue against the appellant assessee the ld. CIT(A) has placed reliance on 'Rajesh Kaurani vs. Union of India', 83 Taxmann.com 137 (Guj.) wherein it was held that Section 200A of the Act is a machinery provision providing the mechanism for processing a TDS statement of deduction of tax at source and for making adjustment. The Ld. CIT(A) has further held that this decision was delivered after considering numerous ITAT and High Court decisions and therefore this decision in 'Rajesh Kaurani' (Supra), holds the fields. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 'ShriFatehrajSinghvi 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, 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 sub-section (1) of Section 200A c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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