TMI Blog2021 (9) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. CIT(A) himself says, that the issue is debatable then the same takes the adjustment out of the jurisdiction of CPC Bangalore. As debatable issues cannot be decided under computerised adjustment. Hence to conclude since it has been held by higher courts that prior to enabling provision to levy interest under section 234E, the interest for earlier period return due cannot be upheld we set aside the order of learned CIT(A) and decide the issue in favour of assessee. - I.T.A. No. 4824/Mum/2019, I.T.A. No. 4823/Mum/2019 - - - Dated:- 2-9-2021 - Shri Shamim Yahya (AM) And Shri Pavankumar Gadale (JM) For the Assessee : Shri Rajesh Mehta For the Department : Shri Manoj Kumar Singh ORDER PER SHAMIM YAHYA (AM) :- These are appeals by the assessee against respective orders of learned CIT(A) for A.Y. 2013-14 2015-16 respectively. 2. Since the issues are common and connected and these are being consolidated and disposed of together for the sake of convenience. 3. Since the grounds of appeals and orders of learned CIT(A) are identical, we are referring to grounds of appeal for A.Y. 2013-14. The grounds read as under :- 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deductor had filed its TDS Quarterly statement for F.Y.2013-14 as under :- TDS statement for the Quarter Due date of filing Actual date of filing TDS statement Delay in filing TDS statement Amount of late fees u/s. 234E Q3(26Q) 15th Jan 2014 10th Dec 2014 329 days ₹ 37080/- Q4(26Q) 15th May 2014 10th Dec 2014 209 days ₹ 41800/- Total in Rs. ₹ 78,880/- The CPC TDS raised the demand of ₹ 78.880/- for the two quarters u/s 234E for which the assessee is in appeal with following grounds. Thereafter learned CIT(A) noted the grounds as under :- 1. That The Ld. Assessing officer (TDS-CPC) had erred in levying and CIT(A) erred in confirming levy of late fees of ₹ 78880/- wrongly issued order U/s 200A of the Act. 2. That the sec.200A of the Act does not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amendment to s. 200A has come into effect on 1.6.2015 and has prospective effect, no computation of fee for the demand or the intimation for the fee u/s 234E can be made for TDS deducted prior to 1.6.2015. Hence, the demand notices u/s 200A for payment of fee u/s 234E is without authority of law. This Judgement was also followed by Karnataka High Court in the case of Sree Ayyappa Educational Charitable Trust Vs. Deputy Commissioner Of Income Tax Anr.(2017) [Writ Petition No.618/2015 c/w Writ Petition Nos.5831/2015 5990-6001/2015 (T-IT)]. In the said case Hon'ble Karnataka High Court has held as under :- In view of the aforesaid observations and discussion, the impugned notices under Section 200A of the Act for computation and intimation for payment of fee under Section 234E as they relate to for the period of the tax deducted prior to 1.6.2015 are set aside. Karnataka High Court in case of Koraga Poojari Ravindravs Union of India on 12 December, 2017, Writ Petition Nos.9049/2015 26715/2015 (T-IT) followed the case of Fatheraj Singhvi Ors. Vs. Union of India Ors, this is not disputed by the learned counsel for the Revenue was decided in favour of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court of Gujarat; but the CIT(A) has failed to take into consideration the settled law that where there is difference of opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in limine being filed beyond the period of limitation. We have already decided the issue on merits in favour of assessee. 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. Since the issue arising in the present bunch of appeals is similar to the issue before the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country, it is necessary for each lower tier including the High Court, to accept loyally the decisions of the higher tiers . It is inevitable in hierachical system of Courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary. But the judicial system only works if someone is allowed to have the last word, and that last word once spoken is loyally accepted. The better wisdom of the Court below must yield to the higher wisdom of the Court above as held by the Supreme Court in the matter of C. C. E. v. Dunlop India Ltd. , In case, any decision in favour of revenue be considered, it may be appreciated that where more than one judicial interpretations are possible, the one, favourable to the assessee shall apply. Thus, the case law which is more beneficial to the assessee shall apply. Reliance in this regard is placed on the decision of Hon'ble Supreme Court in CIT v. Vegetable Products Ltd [1973] 88 ITR 192, if the Court finds that the language of taxing provision is ambiguous or capable of more meaning than one, then the Court has to adopt the interpretation which favours the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Private Ltd (2008) 113 ITD 0719 held that - Hon'ble Supreme Court of India in the case of Commissioner Of Income Tax Vs. Hindustan Electro Graphites Ltd. (2000) 160 CTR 0008 held that- In the case of ITAT Pune Bench 'A' being the coordinate bench, Medical Superintendent Rural Hospital, DOBI BK Vs Deputy Commissioner of Income Tax, CPC (TDS), Ghaziabad 173 ITD 575 ITAT MUMBAI in the case of BCCI v/s ACIT (TDS)-2, Mumbai, I.T.A. No.1999/Mum/2017, in the order dated 5-10-2018 Hon'ble ITAT, Mumbai Bench, in the case of Hardik Shantilal Sheth Vs ACIT (TDS)-CPC, vide ITA No. 6506/MUM/2017 Hon'ble ITAT Cuttack Bench in the case of Spectra Vision Vs DCIT, CPC, TDS, Ghaziabad vide. ITA Nos.329 to 332/CTK /2016, assessment year 2013-14 2014-15 Hon'ble ITAT, Amritsar Bench, in the case of Tata Rice Mills Vs Asst. CIT, CPC, TDS, Ghaziabad vide ITA no. 395(Asr) 2016, assessment year 2014- 15 Hon'ble ITAT, Pune Bench, being the Coordinate Bench in the case of Vidya Vardhani Education Research Foundation Vs Deputy Commissioner of Income Tax, CPC, TDS, Ghaziabad vide ITA No. 1887/PUN/2016. 7. After noting the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CPC TDS is upheld. In Ground No. 4, the appellant has taken the plea that the TDS statement has been processed u/s 200A by TDS CPC, whereas as per section 200A(2), CBDT has not authorised the CPC TDS to levy late fee. Therefore the levy of late fee is beyond jurisdiction. The contention of the appellant on this account is also misplaced as the CBDT has empowered the CPC TDS by the Centralised Processing of Statement of Tax Deducted at Source scheme 2013 to process returns u/s 200A(2) and to determine the tax payable, or, the refund due to the deductor as required under the said sub section. In Ground No. 5, the assessee has submitted that as per proviso to Sec 200A, no intimation under this sub section shall be sent after the expiry of one year from the end of the financial year in which the statement is filed. As intimation sent after 31/03/2016 for FY 2013-14, 26Q-Q4 and therefore the intimation issued is itself wrong. Further, to verify the claim of the assessee, a request was made to the CPC TDS on 06/06/2019 to provide the details of this case and the CPC TDS vide his mail dated 06/07/2019 has sent the following details :- TAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 154. Hence, on this ground, the AO's order is upheld. After going through all the grounds, there is no ambiguity in interpreting the facts as well as the legal position and considering the same, the order passed by the CPC TDS is upheld. In sum, the appeal is DISMISSED. 8. Against this order assessee is in appeal before us. 9. We have heard both the parties and perused the records. Counsel has given following written submissions :- In respect of the captioned F.Y. 2013-14 (relevant to A.Y. 2014-15) and F.Y. 2014-15 (relevant to A.Y. 2015-16), there was a delay in filing TDS Statements by the appellant. The TDS Returns filed by the Appellant were processed by the Centralized Processing Cell of the Income Tax Department (CPC-TDS, Ghaziabad) and Intimations u/s. 200A of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') were issued whereby late fee u/s. 234E of the Act was levied. Aggrieved from the said levy of late fee u/s. 234E of the Act, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals)-60, Mumbai. The Ld. CIT(Appeals)-60, Mumbai dismissed the appeal vide his Order dated 07.06.2019. Aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 23 4E 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. 27. In view of the aforesaid observations and discussion, the impugned notices under Section 200A of the Act for computation and intimation for payment of fee under Section 234E as they relate to for the period of the tax deducted prior to 1.6.2015 are set aside. b. Hon'ble Karnataka High Court - Pixel Pictures Pvt. Ltd. vs. Union of India [W.P. No. 850/2017 W.P. Nos. 15603-15613/2018] has held that late fee u/s. 234E cannot be levied for TDS Statements pertaining to period prior to 01.05.2015. c. Hon'ble Mumbai ITAT - Dilip Sharayu Bapat vs. ACIT, CPC(TDS) [ITA No. 4849 to 4851/Mum/2018] vide its Order dated 29.11.2019 has held that late fee u/s. 234E of the Act cannot be levied for the tax deducted at source, prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied for the returns/quarters prior to 01.06.2015. g. Hon'ble Karnataka High Court in the case of Sree Ayyappa Educational Charitable Trust vs. DCIT Anr. [2017] [Writ Petition No. 618/2015 c/w. W.P. No. W.P. 5831 5990-6001/2015] has held as under: 27. In view of the aforesaid observations and discussion, the impugned notices under Section 200A of the Act for computation and intimation for payment of fee under Section 234E as they relate to for the period of the tax deducted prior to 1.6.2015 are set aside. h. ITAT Chandigarh in the case of M/s. Terra Infra Development Limited Hyderabad [ITA No 1876 1875/Hyd./2017] Assessment Years: 2013-14 2014-15 stated that the Coordinate Bench in the case of M/s. Sonalac Paintings Coatings Ltd held that: we hold that the interest u/s 234E cannot be levied in respect of TDS returns filed prior to 1.6.2015. TDS Fees under Se.234E, Sonalac Paints Coating Ltd V/s Dy CIT ITA No.ll58/CHD/2017 reported in (2018) 167 DTK (Chd B) 83 order dated 1-5-2018, Levy of fees by way of intimation under Se 200A. Fees levied under Sec. 234E prior to 1st June 2015 in the intimations made under Se 200A was without authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) to distinguish the case law of Vegetables Products Ltd. (supra) from Hon'ble Supreme Court cited before him. The said case law provides that if two views are possible the view in favour of the assessee has to be adopted. Hence, if as per learned CIT(A) there are divergent views of Hon'ble High Courts, in absence of a Jurisdictional High Court decision, the learned CIT(A) should have followed the ratio from this Hon'ble Supreme Court decision and followed the high court decision in favour of the assessee. In our opinion learned CIT(A) has engaged in judicial indiscipline and his approach and order cannot be countenanced. Further we may refer to the penultimate para of learned CIT(A) order :- The appellant's another plea that the rejection of order u/s 154 of the assessee by the AO is bad in law as law in this respect was very clear. However, it is clearly apparent that where on an issue the two High Courts are giving divergent opinions, the issue is definitely debatable and cannot be considered as an apparent mistake from the record. Thus, the rejection by the AO is as per law and hence this plea of deletion of demand u/s 234E by the AO cannot be entertained ..... 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