TMI Blog2020 (10) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... and the demand raised by way of charging of the fees under section 234E of the Act not being valid is deleted. In this view of the matter, we hold that the AO is not empowered to charge fees under section 234E of the Act by way of intimations issued under section 200A of the Act in respect of defaults before 01.06.2015 - Decided in favour of assessee. - ITA NO. 1151/MUM/2018 - - - Dated:- 23-10-2020 - SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI N.K. PRADHAN, HON'BLE ACCOUNTANT MEMBER Assessee by : Shri Vipul N. Shah Department by : Shri Udaya B. Jakke ORDER PER C.N. PRASAD (JM) 1. This appeal is field by the assessee against the order of Learned Commissioner of Income Tax (Appeals)-59, Mumbai dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Tribunal and by order dated 23.9.2016 after analyzing various case laws on the issue it was held that, prior to 1.06.2015 late fee u/s 234E cannot be charged while processing quarterly return u/s 200A of the Act observing as under: - 28. The perusal of Memo explaining the provision relating to insertion of clause (c) to section 200A of the Act clarifies the intention of Legislature in inserting the said provision. The provisions of section 234E of the Act were inserted by the Finance Act, 2012, under which the provision was made for levy of fees for late furnishing TDS / TCS statements. Before insertion of section 234E of the Act, the Finance (No.2) Act, 2009 had inserted section 200A in the Act, under the said section, mechan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has processed the TDS statements filed by the deductor, which admittedly, were filed belatedly but before insertion of clause (c) to section 200A(1) of the Act w.e.f. 01 .06.2015, then in such cases, the Assessing Officer is not empowered to charge fees under section 234E of the Act while processing the TDS returns filed by the deductor. 29. The Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) has upheld the constitutional validity of said section introduced by the Finance Act, 2015 w.e.f. 01.06.2015 but was not abreast of the applicability of the said section 234E of the Act by the Assessing Officer while processing TDS statement filed by the deductor prior to 01.06.2015. In such scenario, we find no me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is given to the Assessing Officer to levy or charge the fees cannot be said to be clarificatory in nature and hence, applicable for pending assessments. 31. The Hon'ble Supreme Court in CIT Vs. Vatika Township Pvt. Ltd. (supra) has explained the general principle concerning retrospectivity and have held that of the various rules guiding how a legislation has to be interpreted, one established rule is that unless contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. Idea behind the rule is that current law should govern current activities The Memo explaining the Finance Bill, 2015 very dearly also recognizes that and refers to the current provisions of sub-section (3) to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the machinery was provided for the Assessing Officer to process the TDS statements filed by the assessee. The insertion categorically being made w.e.f. 01.06.2015 lays down that the said amendment is prospective in nature and cannot be applied to processing of TDS returns I statements prior to 01.06.2015. 32. We further find that in recent judgment dated 26.08.2016, the Hon'ble Karnataka High Court in Writ Appeal Nos. 2663-2674/2015(T- IT) Ors in Sri Fatheraj Singhvi Ors Vs. Union of India Ors has quashed the intimation issued under section 200A of the Act levying the fees for delayed filing the TDS statements under section 234E of the Act. The Hon'ble High Court notes that the Finance Act. 2015 had made amendments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, the Coordinate Bench of the Mumbai Bench in the case of Asian Pipes Profiles Pvt. Ltd. Vs. Assessing Officer, TDS Ward in ITA Nos. 4740 and 4741/Mum/2016 dated 1.3.2017 held as under: - 6.2 Following the above referred decision of the Hon ble ITAT Pune Bench in the case of Gajanan Constructions and others in ITA Nos. 1292 1293/PN/2015 and others dated 23.09.2016, we hold that the amendment to section 200A(1) of the Act is prospective in nature and therefore the AO while processing the TDS statements/ returns in the present three appeals for the period prior to 01.06.20 15 was not empowered to charge fees under section 234E of the Act. Therefore, the intimations issued by the AO under section 200A of the Act in these appeals are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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