TMI Blog2021 (7) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... , JUDICIAL MEMBER : Appellant, Sub Divisional Office Civil Panipat (hereinafter referred to as the assessee ) by filing the present appeal sought to set aside the impugned order dated 02.09.2016 passed by the Commissioner of Income-tax (Appeals)-Karnal qua the assessment year 2015-16 on the grounds inter alia that : 1. That on the facts and circumstances of the case and law on the point, the Ld. Assessing Officer has erred in passing the order/ intimation u/s 200A of the Income Tax Act, 1961 for levy of late filing fee for ₹ 72,200 u/s 234E of the Act as the same is beyond the scope of permissible adjustment contemplated as per the provisions of section 200A of the Income Tax Act, 1961 and Hon ble CIT(A) erred in confirming the same. Hence, the order passed by the Ld. Assessing Officer and Hon ble CIT(A) is against the provisions of law and liable to be quashed. 2. The appellant craves leave to add to, alter, modify, substantiate, delete and / or to rescind all or any of the grounds of appeal on or before the final hearing, if necessity so arises. 2. Briefly stated the facts necessary for adjudication of the controversy at hand are : assessee is a loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in the case of Supreme Brahmaputra (JV) vs. TDS CPC, Ghaziabad in ITA No.6706 to 6708/Del/2019 order dated 31.08.2020 in the light of the decisions rendered by Hon ble High Courts and coordinate Bench of the Tribunal by returning following findings :- 19. We find, identical issue had come up before the Tribunal in the case of Anjani Technoplast Ltd. vs. ACIT-TDS-CPC, vide ITA No.7931 to 7937/Del/2019 and batch of appeals for A.Y. 2013-14, 2014-15 and 2015-16. Vide order of even date, we have held that there is no delay in filing of the appeals by observing as under:- 22. So far as the delay in filing of the appeals before the CIT(A) is concerned, a perusal of the Form No.35 filed along with copy of order passed u/s 154 by the CPC shows that the date of order u/s 200A was 27th July, 2013 and the assessee filed the rectification application before the CPC and the order u/s 154 was passed on 6th February, 2019. The assessee has filed the appeal against the order passed u/s 154 on 26th February, 2019 which is well within the time. Even the ld.CIT(A) at para 4.2 of his order has also mentioned that the assessee has filed the appeal against the correction dated 6th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering 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 as under:- 9. We have heard the rival contentions and perused the record. The issue which needs to be adjudicated in these appeals is the charging of late filing fee u/s 234E of the Act while issuing the intimation u/s 200A of the Act. The case of the assessee before us is that where the legislature has inserted clause (c) to section 200A(1) of the Act w.e.f 01.06.2015, then in respect of the TDS statements which were filed under the respective sections of the Act, for the period prior to 01.06.2015, no late filing fee could be charged u/s 234E of the Act, in the intimation issued u/s 200A of the Act. We find that the said issue has been adjudicated by the Hon ble Karnataka High Court in Fatehraj Singhvi Others vs Union of India (supra), which proposition has been applied by the Pune Bench of the Tribunal in Medical Superintendent Rural Hospital, DOBI BK vs DCIT (supra). The Tribunal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 2014-15 vide order dated 13.01.2017 and also in Swami Vivekanand Vidyalaya Vs. DCIT(CPC)-TDS (supra) and Medical Superintendant Rural Hospital Vs. ACIT (CPC)-TDS in ITA Nos.2072 2073/PUN/2017, order dated 21.12.2017, which has been relied upon by the learned Authorized Representative for the assessee. 13. The Hon ble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra) had also laid down similar proposition that the amendment to section 200A of the Act w.e.f. 01.06.2015 has prospective effect and is not applicable for the period of respective assessment years prior to 01.06.2015. The relevant findings of the Hon ble High Court are in paras 21 and 22, which read as under:- 21. However, if Section 234E providing for fee was brought on the state book, keeping in view the aforesaid purpose and the intention then, the other mechanism provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... active 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. 14. The Hon ble High Court thus held that where the impugned notices given by Revenue Department under section 200A of the Act were for the period prior to 01.06.2015, then same were illegal and invalid. Vide para 27, it was further held that the impugned notices under section 200A of the Act were for computation and intimation for payment of fees under section 234E of the Act as they relate for the period of tax deducted at source prior to 01.06.2015 were being set aside. 15. In other words, the Hon ble High Court of Karnataka explained the position of charging of late filing fees under section 234E of the Act and the mechanism provided for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Court of Gujarat; but the CIT(A) has failed to take into consideration the settled law that where there is difference of opinion between different High Courts on an issue, then the one in favour of assessee needs to be followed as held by the Hon'ble Supreme Court in CIT Vs. M/s. Vegetable Products Ltd. (supra), in the absence of any decision rendered by the jurisdictional High Court. The Hon ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (2015) 54 taxmann.com 200 (Bom) had decided the constitutional validity of provisions of section 234E of the Act and had held them to be ultra vires but had not decided the second issue of amendment brought to section 200A of the Act w.e.f. 01.06.2015. In view thereof, respectfully following the ratio laid down by the Hon ble High Court of Karnataka and Pune Bench of Tribunal in series ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. The Delhi Bench of Tribunal in Meghna Gupta vs ACIT (supra) has also laid down similar proposition and held as under:- 6. We have heard the rival submissions and also perused the relevant finding given in the impugned orders as well as material referred to before us. At the outset, from the perusal of the rectification order u/s 200A generated by TDS (CPC), it is noticed that the TDS in 26QB mentions date of filing of 'challan cum statement' as 5.4.2014, wherein late filing of 'challan cum statement' u/s 234E has been levied. The assessee had purchased the property on 6.12.2013 i.e., relevant to the assessment year 2014-15. Since assessee had purchased the property from eight sellers and the payment to each of the seller has been made separately for an amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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, wherein the lordship had made following observations :- 14. We may now deal with the contentions raised by the learned counsel for the appellants. The first contention for assailing the legality and validity of the intimation under Section 200A was that, the provision of Section 200A(1)(c), (d) and (f) have come into force only with effect from 1.6.2015 and hence, there was no authority or competence or jurisdiction on the part of the concerned Officer or the Department to compute and determine the fee under Section 234E in respect of the assessment year of the earlier period and the return filed for the said respective assessment years namely all assessment years and the returns prior to 1.6.2015. It was submitted that, when no express authority was confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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. 23. So far as the various decisions relied on by Ld. DR are concerned, we have carefully gone through all those decisions and are of the opinion that these can be divided broadly into three categories i.e. a) Provisions of section 234 E are constitutionally valid b) Rule of consistency is not applicable and c) Late of fee u/s. 234 E is leviable for defaults of period in filing the TDS/TCS statements/ returns even for the period prior to 01-06-2015 23.1 So far as the argument of the Ld. DR on the basis of various decisions including the decision of Hon ble Delhi High Court in the case of Biswajit Das (supra) that provisions of section 234E are constitutionally valid is concerned, no doubt the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are conflicting decisions of different High Courts. 11. Because Hon ble Karnataka High Court in case of Fatehraj Singhvi Ors. vs. UOI Ors. 2016 (9) TMI 964 (Karnataka High Court) is in favour of the assessee holding that the amendments brought in statute w.e.f. 01.06.2015 are prospective in nature and as such, notices issued u/s 200A of the Act for computation and intimation of payment of late filing fee u/s 234E of the Act relating to the period of tax deduction prior to 01.06.2015 was not maintainable. 12. At the same time, Hon ble Gujarat High Court in case of Rajesh Kourani vs. UOI (2017) 83 taxmann.com 137 (Gujarat) has decided the issue against the assessee. So, in these circumstances, we are of the considered view that following the decision rendered by Hon ble Supreme Court in the case of Vegetable products Limited 88 ITR 192 (SC) that when there are conflicting decisions, the view taken in favour of the assessee should be followed, the impugned order passed by the ld. CIT (A) confirming the late fee levied by the AO u/s 200A read with section 234E as the defaults are prior to 01.06.2015, is not sustainable in the eyes of law, hence fee levied u/s 234E is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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