TMI Blog2020 (5) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 19-3-2020 - Hon'ble Kul Bharat, Judicial Member And Hon'ble Manish Borad, Accountant Member For the Appellants : Shri S.S. Deshpande, CA For the Respondent : Shri Ashish Porwal, Sr. DR ORDER PER BENCH: The above captioned appeals are at the instance of respective assessees and are directed against the respective orders of Ld. Commissioner of Income Tax(Appeals), (in short CIT(A) ). As the issue 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. From perusal of the grounds we find that only one issue needs to be adjudicated as to whether the Revenue 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 01.06.2015and processed u/s 200A of the Act. 8. Ld. Counsels for the assessees further placed reliance on the decisions of I.T.A.T., Indore Bench in the case of State Bank of India, Genda Chowk and others dated 13.11.2018and M/s. Madhya Pradesh Power Transmission Ltd. others in ITA Nos.740/Ind/2017 others, order dated 20.12.2018, Bhupesh Kumar J. Sanghvi others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue 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 Bench in the case of SudarshanGoyal (supra) adjudicating very same issue observed as follows: The issue involved in this appeal is as to whether late filing fee u/s 234E of the IT Act has rightly been charged in the intimation dated 10.11.2013 issued u/s 200A of the Act while processing the TDS returns/statement, the enabling clause (c) having been inserted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 'Shri FatehrajSinghvi 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, I.T.A No. 442/Agra/2017 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 canc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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'ble Supreme Court and Hon'ble Karnataka High Court, we set aside the order of ld. CIT (A) and direct the AO to drop the demand raised of ₹ 4,200/- u/s 234E on statements processed u/s 200A before 01.06.2015. Thus grounds raised by the assessee are allowed. The Hon'ble Jurisdictional High Court in the case of DundlodShikshanSansthanVs. Union of India (supra) has decided the issue of vires of Section 234E of the Act. The Hon'ble Karnataka High Court in the case of FatherajSinghvi ors. Vs Union of India Ors. (supra) has held that the demand U/s 200A for computation and intimation for the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. It is seen that prior 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 of the Act. The provision of Section 234E of the Act is charging provision i.e. substantive provision which could not be applied retrospectively, unless it is expressly provided in the Act, to levy the late fee for any delay in filing 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 Towns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows: 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 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 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 FatehrajSinghvi and Others' (supra), 'Sibia Healthcare Pvt. Ltd. vs. DCIT (TDS)', order dated 09.06.2015 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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