TMI Blog2022 (7) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The Hon ble High Court had not gone into the issue of retrospective operation of provisions of section 234E of the Act. In the circumstances, we direct the ACIT, CPC (TDS), Ghaziabad to delete the late fee being levied u/s 234E of the Act. - Decided in favour of assessee. - 1172/PUN/2018 1173/PUN/2018 1174/PUN/2018 1175/PUN/2018 1176/PUN/2018 - - - Dated:- 30-6-2022 - SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER Assessee by : None Revenue by : Shri M. G. Jasnani ORDER PER BENCH : These are the five appeals filed by the assessee against the common order of ld. Commissioner of Income Tax (Appeals)- 3, Nashik dated 20.04.2018 for the assessment year 2016-17 and 2017-18 respectively. 2. First, we shall take up the appeal in ITA No.1172/PUN/2018 for A.Y. 2016-17 for adjudication. ITA No.1172/PUN/2018, A.Y. 2016-17 : 3. The appellant raised the following grounds of appeal :- 1] The learned CIT(A) erred in upholding the order u/s 154 passed by the ACIT, CPC (TDS), Ghaziabad and thereby confirming the levy of late fee u/s 234E of Rs.93,600/- in the intimation generated u/s 200A passed in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, late fees u/s 234E of the Act can be levied only prospectively w.e.f. 01.06.2015. The relevant observation of the Hon ble Karnataka High Court in the case of Fatheraj Singhvi (supra) are extracted hereunder :- 19. Hence, it can be said that, the mechanism provided for enforceability of Section 200(3) or 206C (3) for filing of the statement by making it penal under Section 272A (2) (k) is done away in view of the insertion of Section 271H providing for penal provision for such failure to submit return. When the Parliament has simultaneously brought about Section 234E, Section 271H and the aforesaid proviso to Section 272A(2), it can be said that, the fee provided under Section 234E is contemplated to give a privilege to the defaulter to come out from the rigors of penalty provision under Section 271H (1) (a) if he pays the fee within one year and complies with the requirement of subsection (3) of Section 271H. 20. In view of the aforesaid observations and discussion, two aspects may transpire one, for Section 234E providing for fee and given privilege to the defaulter if he pays the fee and hence, when a privilege is given for a particular purpose which in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etroactive 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 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. 23. In view of the aforesaid observation and discussion, since the impugned intimation given by the respondent-Department against all the appellants under Section 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the question of constitutional validity of Section 234E may be kept open to be considered by the Division Bench and the Judgment of the learned Single Judge may not conclude the constitutional validity of Section 234E of the Act. 26. Under these circumstances, we find that no further discussion would be required for examining the constitutional validity of Section 234E of the Act. Save and except to observe that the question of constitutional validity of Section 234E of the Act before the Division Bench of this Court shall remain open and shall not be treated as concluded. 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. It is clarified that the present judgment would not be interpreted to mean that even if the payment of the fees under Section 234E already made as per demand/intimation under Section 200A of the Act for the TDS for the period prior to 01.04.2015 is permitted to be reopened for claiming refund. The judgment will have prospective e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0A r.w.s. 154 of the Act. 15. Being aggrieved by the above intimation, an appeal was filed before the ld. CIT(A). The ld. CIT(A) dismissed the appeal on the ground that the assessee had failed to demonstrate sufficient and reasonable cause for delay in filing the quarterly statement of TDS of second quarter for financial year 2015-16 in Form No.26Q. 16. Being aggrieved by the above decision of the ld. CIT(A), the appellant is in appeal before us. 17. When the matter was called on, none appeared on behalf of the appellant-assessee despite due service of notice of hearing. Therefore, we proceed to dispose of the present appeal on merits after hearing the ld. CIT-DR. 18. We heard the ld. CIT-DR and perused the material on record. The issue in the present appeal relates to the levy of late fee u/s 234E r.w.s. 200A of the Act. It is an undisputed fact that there is a delay in filing the submission of the Quarterly Statement of TDS. When there is a delay, a late fee u/s 234E r.w.s. 200A of the Act is automatic and there is no discretion not to levy late fees with the TDS Officer. It is not the case of the appellant that there is denial of liability for late fee u/s 234E of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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