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TMI Blog2020 (9) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... s are largely distinguishable. The Tribunal has not appreciated the rationale of the amendments brought in the form of insertion of section 234E by the Finance Act, 2012 and insertion of clause (c) to Sec. 200A(1) of the I.T. Act by Finance Act 2015 as well as the decisions of various High Courts including jurisdictional High Court. The rationale behind such amendments & explanatory notes are available in the respective Memorandum to the corresponding Finance Bill which have not been considered by Hon'ble ITAT in its order dt.29.11.2019. She drew the attention of the Bench to the relevant provisions of I.T. Act viz. Sec.234E, Sec.200A(l), 271H, Memorandum to Finance Bill, 2012, Memorandum to Finance Bill'2015 alongwith host of case-laws decided in favour of Revenue. She submitted that the premise /foundation of the decision of Hon'ble Karnataka High Court has also been analysed and is distinguishable in view of the case-laws referred to. Accordingly she urged that the above decision dated. 29.11.2019 should not be followed in the name of rule of consistency in the case of above mentioned appeals as also res- judicata is not applicable in income-tax proceedings. 4. As regards 'Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period of delay in filing of TDS return/statement before 01.06.2015 i.e. insertion of caluse (c) to section 200A have also been examined by various High Courts and have upheld the chargeability of fee u/s 234E and the assessee's appeal have been dismissed. In particular, the decisions of Hon'ble Gujarat High Court, Madras High Court & Rajasthan High Court may kindly be referred to. In several cases the period under consideration before Hon'ble High Courts included the period prior to 01.06.2015. The ld. DR relied on the following decisions:- (i) Rajesh Kourani vs. UOI [2017] 83 taxmann.com 137 (Gujarat) (ii) Biswajit Das vs. UOI, [2019] 103 taxmann.com 290 (Delhi)] (iii) Qatalys Software Technologies (P) Ltd. vs. UOI, [2020] 115 taxmann.com 345 (Madras) ] (iv) Dunlod Shikshan Sansthan vs. UOI [2015] 63 taxmann.com 243 (Raj)] (v) Rashmikant Kundalia vs. UOI [2015] 54 taxmann.com 200 (Bombay) (vi) Lakshminirman Bangalore Pvt. Ltd. vs. DCIT [2015] 60 taxmann.com 144 (Karnataka) (vii) Sree Narayana Guru Smaraka Sangam Upper Primary School vs. UOI [2017] 77 taxmaim.com 244 (Kerala) (viii) Dr. Amrit Lai Mangal vs. UOI [2015] 62 taxmami.com 310 ( P& H) 9. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, then fees chargeable u/s 234E is required to be computed as per section 200A(l)(c) by virtue of the fact that the charging section was already effective since 01/07/2012. Similar will be the scenario if TDS return with default of being delayed is submitted after 01/06/2015 and processing is done thereafter. Since the charging section was already effective on the date of occurrence of default (i.e. the due date filing of TDS return on which TDS return was not filed), any TDS return processed after introduction of clause 200A(l)(c ) (i.e. giving effect to computation of fees u/s 234E of the Act) should include computation of fees under section 234E. This also needs consideration by Hon'ble ITAT. d). Section 200A speaks about the processing of TDS return/statements and thus the provisions starts only after the filing of such TDS returns/statements, whether in time or delayed, whereas section 234E seeks to levy the fees for the period of delay in filing such TDS returns and statements. Therefore, it may be seen that the charging provisions of section 234E precedes the operation of the machinery provisions of section 200A. Hon'ble ITAT has not appreciated this obvious difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as prospective in nature unless they were accounting for an obvious omission, or explaining a former legislation. In the present case, section 200(3) provides for statutory liability for depositing the TDS and furnishing the requisite statement with in due time (the said provision inserted by Finance Act 2004 w.e.f. 01/04/2005). Section 234 E which provides for levy of fees if assessee is in violation of 200(3) or 206C(3) of the Act, is inserted by F.A.2012 w.e.f. 01/07/2012 .Therefore, since both the substantive legislation (section imposing statutory liability as well as the charging section for levy of fees in case of violation of statutory liability) were in effect much earlier from the date of insertion of 200A(3) which is merely a mechanical provision providing for computation, such amendment in procedural section should be considered as clarificatory in nature. The same have not been considered by Hon'ble ITAT. 11. She submitted that in the case of Rajesh Kourani, Hon'ble Gujarat High Court has considered the chargeability of fee u/s 234E before 01.06.2015 when clause (c) was inserted to section 200A(1) by the Finance Act, 2015. Hon'ble High Court also considered the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra vires." 13. The findings of Hon'ble Rajasthan High Court has also escaped the consideration by Hon'ble ITAT. She accordingly requested that the same may kindly be considered to avoid any miscarriage of justice. 1. Block Development Officer Vs. ACIT date of order 19.06.2010. 2. Secondary School Principal Vs. ACIT CPC- TDS (ITAT Jaipur) ITA No.964/JP/2019 Date of order 24.06.2020 14. The ld. DR submitted that on a perusal of the order it may be noted that Hon'ble Karnataka High Court set-aside the order levying the fee u/s 234E holding that the amendments in sec 200A, wherein the clause (c) was inserted, can't have any retrospective application. However, two important points can be noted in the order. First Hon'ble Court didn't gave any such findings which can be said to have negated the mandatory charging of fees u/s 234E for late filing of TDS/TCS returns / statements which creates an automatic charge on the deductors who have defaulted on this count & who are required to voluntarily pay the fee u/s 234E before delivering such belated TDS/TCS returns /statements in accordance with sub-section (3) of sec. 234E. Second, Hon'ble Karnataka High Court left the question of cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. We have also considered the various decisions cited before us. We find, the assessee, in the instant case has basically challenged the levy of late fee u/s 234E by the AO which has been upheld by the CIT(A) and who has also dismissed these appeals on account of delay in filing. 18. A perusal of the orders of the CIT(A) shows that he has confirmed the amount of late filing of Rs. 61,000/- for furnishing the statement in form 26QB late by 3-05 days. 19. A perusal of the order of the lower authorities shows that all these TDS statement was filed before 01.06.2015. Therefore, the question that has to be considered is as to whether the CIT(A) was justified in confirming the levy of late fee u/s 234E for delay in filing of the TDS statements. We find, identical issue had come up before the coordinate Bench of the Tribunal in the case of Udit Jain (supra). The Tribunal, after considering the decision of the Hon'ble Karnataka High Court in the case of Fatehraj Singhvi vs. UOI as well as the decision of the Hon'ble Gujarat High Court in the case of Rajesh Kourani vs. UOI reported in (2017) 83 taxmann.com 137, has decided the issue in favour of the assessee by observing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 561/PN/2016, 1018/PN/2016 to 1023/PN/2016 in Maharashtra Cricket Association Vs. DCIT (CPC)-TDS, Ghaziabad, relating to assessment years 2013-14 and 2014-15 for the respective quarters deliberated upon the issue and held as under:- "34. Accordingly, we hold that the amendment to section 200A(1) of the Act is procedural in nature and in view thereof, the Assessing Officer while processing the TDS statements / returns in the present set of appeals for the period prior to 01.06.2015, was not empowered to charge fees under section 234E of the Act. Hence, the intimation issued by the Assessing Officer under section 200A of the Act in all these appeals does not stand and the demand raised by way of charging the fees under section 234E of the Act is not valid and the same is deleted. The intimation issued by the Assessing Officer was beyond the scope of adjustment provided under section 200A of the Act and such adjustment could not stand in the eye of law." 12. The said proposition has been applied in the next bunch of appeals with lead order in Vidya Vardhani Education and Research Foundation in ITA Nos.1887 to 1893/PUN/2016 and others relating to assessment years 2013-14 and 2014-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of fee under Section 234E was provided but, it did not provide for making of demand of such fee under Section 200A payable under Section 234E. Hence, considering the aforesaid peculiar facts and circumstances, we are unable to accept the contention of the learned counsel for respondent-Revenue that insertion of clause (c) to (f) under Section 200A(1) should be treated as retroactive in character and not prospective. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Assessing Officer while processing TDS returns / statements for the period prior to 01.06.2015 was not empowered to charge late filing fees under section 234E of the Act, even in cases where such TDS returns were filed belatedly after June, 2015 and even in cases where the Assessing Officer processed the said TDS returns after June, 2015. Accordingly, we hold that intimation issued by Assessing Officer under section 200A of the Act in all the appeals does not stand and the demand raised by charging late filing fees under section 234E of the Act is not valid and the same is deleted. 17. Before parting, we may also refer to the order of CIT(A) in relying on the decision of Hon'ble High Court of Gujarat in Rajesh Kourani Vs. Union of India (supra). On the other hand, the learned Authorized Representative for the assessee has pointed out that the issue is settled in favour of assessee by the Hon'ble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra). Since we have already relied on the said ratio laid down by the Hon'ble High Court of Karnataka, the CIT(A) has mis-referred to both decisions of Hon'ble High Court of Karnataka and Hon'ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee being delayed for a period of two and half years. The CIT(A) had taken the date of intimation under section 200A(3) dated 07-08-2014 and computed the delay in filing the appeal late before him. However, the assessee had filed the appeal before the CIT(A) against the order passed under section 154 of the Act. The said application for rectification under section 154 was filed on 08-06-2017/09- 03-2017 in the respective years. The said application was decided by the Assessing Officer on 09-06-2017. The assessee filed an appeal against the dismissal of the rectification application filed under section 154 of the Act. The said fact is clear from the perusal of Form No.35 with special reference to Column 2(a) and 2(b). In the entirety of the above said facts and circumstances, we find no merit in the order of CIT(A) in the case of Medical Superintendent Rural Hospital, Surgana in dismissing the appeal inlimine being filed beyond the period of limitation. We have already decided the issue on merits in favour of assessee." 20. We have already decided the issue on merits in favour of assessee. Accordingly, the grounds of appeal raised by assessee in all appeals are allowed." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant rule 31A(4A) provides that for filing of the 'challan cum statement' within seven days from the date of deduction. Now here in this case the demand has been raised purely on the ground that statement has not been furnished for the tax deduction at source. As stated above, the assessee has duly deposited the tax not at the time of purchase albeit on 5.4.2014 and on the same date, statement has also been filed. The relevant provision of section 200(3) read with rule 31A (4A) only refers to filing of 'challan cum statement' after the tax has been paid. The word "challan" in the said rule indicates that the tax must stand paid and that is how form 26QB is generated. Thus, here in this case, it cannot be held that there is any violation of section 200(3). In any case, the levy of fee u/s 200A in accordance with the provision of section 234E has come into the statute w.e.f. 1.6.2015. Since the challan and statement has been filed much prior to this date, therefore, no such tax can be levied u/s 200A. This has been clarified and held by Hon'ble Karnataka High Court in the case of Fatheraj Singhvi & Ors vs. Union of India reported in (2016) 289 CTR 0602, wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the paras above, the Jurisdictional issue of exercise of power by the Assessing Officer in charging late filing fee u/s 234E of the Act, suffers from infirmity as clause (c) to section 200(A)(1) of the Act has been made applicable specifically from the date from 01.06.2015. Since the period of default was before the said date i.e. 01.06.2015, there is no merit in charging late filing fee u/s 234E of the Act. As we hold that no late filing fee is to be charged, then consequent interest charged u/s 220(2) of the Act also do not survive." 21. We find, the Delhi Bench of the Tribunal in the following decisions also have held that no fee can be levied u/s 234E in terms of section 200A where the date of filing of TDS statement and date of intimation are much prior to 01.06.2015:- i) Prakash Industries Ltd. vs. DCIT, ITA Nos.5865 to 5869/Del/2016, order dated 29.07.2019; ii) M/s Ajvin Infotech Pvt. Ltd. vs. DCIT, ITA No.2305 & 2306/Del/2017, order dated 04.03.2020; iii) M/s D.D. Motors, Haryana vs. DCIT, ITA NO.956/Del/2017, order dated 18.10.2019; and iv) District Health & Welfare Society vs. ITO, ITA No.7473/Del/2018, order dated 26.04.2019. 22. So far as the various deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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