The Forest D.M. Himachal Pradesh State Forest Corp. Ltd., Fatehpur V. ACIT, CPC (TDS), Ghaziabad

ITA 106/CHANDI/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5003 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 02-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DEEPIKA MOHAN
• Assessee Lawyers: Y K SUD
• Keywords: Condonation of delay
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH A, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 106/CHD/2018 ASSESSMENT YEAR: 2013-14 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR , DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 107/CHD/2018 ASSESSMENT YEAR: 2013-14 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 108/ CHD/2018 ASSESSMENT YEAR: 2013-14 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 109/CHD/2018 ASSESSMENT YEAR: 2013-14 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 110/CHD/2018 ASSESSMENT YEAR: 2013-14 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 111/CHD/2018 ASSESSMENT YEAR: 2013-14 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 112/CHD/2018 ASSESSMENT YEAR: 2014-15 2 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 113/CHD/2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 114/CHD/2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 115/CHD/ 2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 116/CHD/2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 117/CHD/2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 118/CHD/2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 119/CHD/2018 ASSESSMENT YEAR: 2014-15 3 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 120/CHD/2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 121/CHD/2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 122/CHD/2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 123/CHD/2018 ASSESSMENT YEAR: 2014-15 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 124/CHD/2018 ASSESSMENT YEAR: 2015-16 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 125/CHD/2018 ASSESSMENT YEAR: 2015-16 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 126/CHD/2018 ASSESSMENT YEAR: 2015-16 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. 4 LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 127/CHD/2018 ASSESSMENT YEAR: 2015-16 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 128/CHD/2018 ASSESSMENT YEAR: 2015-16 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 129/CHD/2018 ASSESSMENT YEAR: 2015-16 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 130/CHD/2018 ASSESSMENT YEAR: 2015-16 THE FOREST D.M. HIMACHAL PRADESH VS ACIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L ITA NO. 131/CHD/2018 ASSESSMENT YEAR: 2015-16 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA. PAN NO. AAACH4036L ITA NO. 132/CHD/2018 ASSESSMENT YEAR: 2015-16 THE FOREST D.M. HIMACHAL PRADESH VS DCIT, CPS (TDS) STATE FOREST CORP. GHAZIABAD. LTD. FATEHPUR DISTT. KANGRA PAN NO. AAACH4036L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI Y.K SUD, CA RESPONDENT BY : MS. DEEPIKA MOHAN, ADDL.CIT DATE OF HEARING : 14.05.2018 DATE OF PRONOUNCEMENT : 28.05.2018 5 ORDER PER BENCH : ALL THE CAPTIONED APPEALS RELATE TO THE SAME ASSES SEE AND ARE DIRECTED AGAINST SEPARATE ORDERS OF LEARNE D COMMISSIONER OF INCOME TAX (APPEALS), PALAMPUR, AL L DATED 03.10.2017, PASSED IN APPEAL AGAINST ORDERS PASSED U/S 154 OF THE INCOME TAX ACT,1961(IN SHORT THE ACT) . 2. AT THE OUTSET IT MAY BE POINTED OUT THAT THE ABO VE APPEALS WERE DELAYED FOR FILING BY 17 DAYS. AN APPL ICATION REQUESTING CONDONATION OF DELAY WAS FILED ALONGWITH AN AFFIDAVIT OF SHRI DINESH KUMAR SHARMA, D.M. OF THE ASSESSEE, STATING ON OATH THAT THE DELAY WAS CAUSED FOR THE REASON THAT THE APPEALS PERTAINED TO A GOVERNMENT C OMPANY I.E. FOREST DM HIMACHAL PRADESH STATE FOREST CORPOR ATION AND THERE WAS NO LEGAL HELP AVAILABLE IN THE FOREST DIVISION, SINCE ALL LEGAL MATTERS WERE CONTROLLED BY THE HEAD OFFICE OF THE COMPANY I.E. HIMACHAL PRADESH STATE FOREST CORPORATION LTD., SHIMLA, WHERE ALL THE ACCOUNTING AND LEGAL STAFF WAS AVAILABLE. IT WAS STATED THAT THE D ELAY WAS TOTALLY UNINTENTIONAL AND BEYOND THE CONTROL OF THE ASSESSEE. THE LD. COUNSEL FOR ASSESSEE REITERATED T HE CONTENTIONS MADE IN THE AFFIDAVIT AND PLEADED THAT THE DELAY BE CONDONED CONSIDERING THE ABOVE FACTS AND THE SHO RT DURATION OF THE DELAY I.E. OF ONLY 17 DAYS. THE LD. DR DID NOT OBJECT TO THE SAME. 3. IN VIEW OF THE SAME, WE CONDONE THE DELAY IN ALL THE APPEALS CONSIDERING THAT THE ASSESSEE HAD REASONABL E CAUSE 6 FOR THE DELAY IN FILING THE APPEALS AND FURTHER CON SIDERING THE SHORTNESS OF THE PERIOD OF THE DELAY. WE SHALL NOW PROCEED TO ADJUDICATE THE APPEALS. 4. IT WAS COMMON GROUND THAT THE ISSUES INVOLVED I N ALL THE APPEALS WERE IDENTICAL, PERTAINING TO CHARGING OF FEES FOR LATE FILING OF TDS RETURNS AS PER THE PROVISIONS OF SECTION 234E OF THE ACT. THEREFORE THEY WERE ALL HEARD TOGE THER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE WE SHALL BE DEALING WITH THE FA CTS IN THE APPEAL OF THE ASSESSEE IN ITA NO.106/CHD/2018 A ND THE DECISION RENDERED THEREIN WILL APPLY MUTATIS MUTAND IS TO OTHER APPEALS ALSO. 5. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT, REGULAR TDS STATEMENT FILED BY THE ASSESSEE WAS INITIALLY P ROCESSED VIDE ORDER U/S 200A OF THE ACT, DATED 18.4.2015. SUBSEQUENTLY, THE ASSESSEE FILED CORRECTION STATEME NT WHICH WAS PROCESSED AND ORDER U/S 154 PASSED ON 5.12.2015 CHARGING LATE FILING FEE U/S 234E OF THE ACT. 6. AGGRIEVED BY THE SAME, THE ASSESSEE WENT IN APPE AL BEFORE THE LD.CIT(APPEALS),CHALLENGING THE CHARGING OF FEES AND ALSO CHARGING THE SAME IN ORDER PASSED U/S 154 OF THE ACT. THE LD.CIT(A) DISMISSED BOTH THE CONTENTIO NS OF THE ASSESSEE AND UPHELD THE FEES CHARGED, FOLLOWING THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE C ASE OF RAJESH KOURANI VS. UNION OF INDIA DATED 20.06.2017, REPORTED IN 83 TAXMANN.COM 137, WHEREIN IT WAS HELD THAT 7 THE DEMAND FOR LATE FILING OF FEE U/S 234E COULD BE RAISED WHILE PROCESSING TDS STATEMENT U/S 200A OF THE ACT EVEN PRIOR TO 01.06.2015, WHEN THE MANDATE TO MAKE SUCH ADJUSTMENT WHILE PROCESSING TDS RETURNS U/S 200A OF THE ACT, DID NOT EXIST ON THE STATUTE. 7. AGGRIEVED BY THE SAME, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US RAISING FOLLOWING COMMON GROUNDS O F APPEALS: 1. THAT CIT(A) WAS NOT JUSTIFIED IN LEVYING OF LAT E FILING FEES U/S 234E AMOUNTING TO RS. 25504/- LEVIED BY THE ACIT. 2. THAT THE CIT(A) HAS WRONGLY SUSTAINED THE INTERE ST OF RS. 259/- & 2056/- WRONGLY CHARGED BY HE ACIT ON LATE PAYMENT. 3. THAT THE CIT(A) FAILED TO APPRECIATE THAT INTERE ST U/S 234E AS HELD BY KARNATAKA HIGH COURT COULD NOT HAVE BEEN LEVIE D AND SHE HAS WRONGLY APPLIED THE GUJRAT HIGH COURT IN PR EFERENCE TO THE KARNATAKA HIGH COURT. 4. THAT THE. CIT(A) WAS NOT UPHOLDING THE ACTION OF AO THAT RECTIFICATION U/S 154 COULD BE CARRIED OUT WITHOUT NOTICE TO THE ASSESSEE BEFORE RECTIFICATION. 8. WE SHALL FIRST BE DEALING WITH GROUND NO.4 RAISE D BY THE ASSESSEE, WHICH CHALLENGES THE ORDER OF THE CIT (A) IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN CH ARGING THE FEES U/S 234E OF THE ACT IN AN ORDER PASSED U/ S 154 OF THE ACT. 9. LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT THE A O HAD NO POWER INITIALLY TO CHARGE FEES U/S 234E OF THE A CT, SINCE THE ORIGINAL PROCESSING OF TDS RETURN AND THE CONSE QUENT INTIMATION U/S 200A WAS MADE PRIOR TO 01-06- 2015 , WHEN THERE WAS NO ENABLING PROVISION U/S 200A FOR CHARGI NG THE SAME. LD.COUNSEL FOR THE ASSESSEE THEREFORE CONTEND ED THAT 8 THE FEES COULD NOT IN ANY CASE HAVE BEEN LEVIED BY WAY OF RECTIFICATION MADE U/S 154 OF THE ACT. LD.COUNSEL ALTERNATELY CONTENDED THAT, THE ISSUE OF CHARGING O F FEES U/S 234E PRIOR TO 01.06.2015, WAS DEBATABLE WITH TWO CONTRADICTORY DECISIONS OF THE HIGH COURTS, THE HON 'BLE GUJARAT HIGH COURT RULING AGAINST THE ASSESSEE IN T HE CASE OF RAJESH KOURANI VS UNION OF INDIA (2017) 83 TAXMA NN.COM 137(GUJ), WHILE THE HONBLE KARNATAKA HIGH COURT RU LING IN FAVOUR OF THE ASSESSEE IN THE CASE OF FATEHRAJ SIN GHVI & ORS VS UNION OF INDIA & ORS (2016) 289 CTR (KAR) 602.THEREFORE ALSO, LD.COUNSEL FOR THE ASSESSEE CON TENDED THAT THE FEES COULD NOT HAVE BEEN CHARGED IN AN ORD ER PASSED U/S 154 OF THE ACT, WHEREIN ONLY APPARENT & GLARING MISTAKES ARE ALLOWED TO BE RECTIFIED. LD.COUNSEL F OR THE ASSESSEE ALSO POINTED OUT THAT THE ORDER U/S 154 HA D BEEN PASSED WITHOUT AFFORDING ANY OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEREFORE ALSO NEEDED TO BE SET ASIDE. 10. LD.DR, ON THE OTHER HAND, SUPPORTED THE ORDER O F THE CIT(APPEALS) THAT THERE WAS NO NEED TO ISSUE SHOW C AUSE NOTICE TO THE ASSESSEE SINCE IT HAD BEEN PASSED ONL Y FOR PROCESSING THE CORRECTION STATEMENT OF TDS FILED BY THE ASSESSEE ITSELF AND NO RECTIFICATION PROCEEDINGS HA D BEEN INITIATED BY THE ASSESSING OFFICER. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE FACTS NOT IN D ISPUTE ARE THAT ORIGINALLY THE TDS RETURN FILED BY THE ASSESSE E WAS PROCESSED U/S 200A OF THE ACT ON 18.04.2015 AND NO FEES 9 U/S 234E WAS CHARGED FOR LATE FILING OF THE RETURNS . IT IS ALSO AN UNDISPUTED FACT THAT THE SAID FEE WAS CHARG ED BY PASSING AN ORDER U/S 154 OF THE ACT ON PROCESSING T HE CORRECTION STATEMENT OF THE ORIGINAL TDS RETURN FIL ED. THE ISSUE TO BE DECIDED IN THE PRESENT GROUND IS WHETHE R THE CHARGE OF THE SAID FEES IN AN ORDER PASSED U/S 154 OF THE ACT WAS PERMISSIBLE IN LAW. 12. SECTION 154 EMPOWERS THE ASSESSING OFFICER TO R ECTIFY MISTAKES APPARENT FROM RECORD WHICH HAS BEEN INTERP RETED BY THE HONBLE APEX COURT IN THE CASE OF T.S. BAL ARAM, ITO VS. VOLKART BROTHERS & OTHERS(1971)82 ITR 50 TO MEA N ONLY OBVIOUS AND PATENT MISTAKES AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINI ONS . 13. IN THE PRESENT CASE FEES U/S 234E HAS BEEN CHAR GED IN THE ORDER PASSED U/S 154 OF THE ACT. THE SAID FEES COULD HAVE BEEN CHARGED ONLY IF THE OMISSION TO CHARGE TH E SAME IN THE ORIGINAL INTIMATION MADE U/S 200A OF THE ACT , ON 18.04.2015, WAS AN APPARENT, OBVIOUS AND GLARING MI STAKE WITH NO TWO VIEWS ON ITS CHARGEABILITY. ADMITTEDLY THERE WERE CONTRARY DECISIONS OF THE HON'BLE HIGH COURTS ON THIS ISSUE OF CHARGING FEES U/S 234E OF THE ACT WHILE PR OCESSING RETURNS U/S 200A OF THE ACT PRIOR TO 01.06.2015 WHE N THERE WAS NO ENABLING PROVISION. THE LD. CIT(A) HAS HIMSE LF REFERRED TO THE SAID DECISIONS, WHICH ARE THE DECIS ION OF THE HONBLE GUJARAT HIGH COURT STATING THAT THE FEE COU LD BE CHARGED IN THE INTIMATION MADE U/S 200A OF THE ACT EVEN 10 PRIOR TO 1.6.2015, WHILE THE HON'BLE KARNATAKA HIGH COURT STATING OTHERWISE. CLEARLY, THE ISSUE WAS A DEBATAB LE ISSUE AND THEREFORE DOES NOT QUALIFY AS A GLARING AND OBV IOUS MISTAKE APPARENT FROM RECORD. THE FEES, THEREFORE, IN ANY CASE COULD NOT HAVE BEEN CHARGED BY RECTIFYING THE INTIMATION MADE U/S 200A OF THE ACT. 14. FURTHER, WE NOTE THAT THE CHANDIGARH BENCH OF THE ITAT IN A RECENT DECISION IN THE CASE OF M/S SONA LAC PAINTS & COATINGS LTD. AND NAGPAL TRADING COMPANY I N ITA NOS.1158 & 963/CHD/2017 DATED 1.5.2018 HAS HELD THA T PRIOR TO 01-06-15 NO FEES U/S 234E WAS CHARGEABLE I N THE INTIMATION MADE U/S 200A OF THE ACT. THE I.T.A.T. I N THE SAID DECISION HAS CONSIDERED THE CONTRARY DECISIONS OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF RAJESH KO URANI (SUPRA) AND HON'BLE KARNATAKA HIGH COURT IN THE CAS E OF FATHERAJ SINGHVI & ORS. (SUPRA) AND APPLYING THE RA TIO IN THE CASE OF VEGETABLE PRODUCTS (SUPRA) THAT IN SUCH CIRCUMSTANCES THE DECISION FAVOURING THE ASSESSEE I S TO BE FOLLOWED, DECIDED THE ISSUE IN FAVOUR OF THE ASSESS EE FOLLOWING THE DECISION OF THE HON'BLE KARNATAKA HIG H COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. (SUPRA). TH E RELEVANT FINDINGS OF THE I.T.A.T. IN THE SAID CASE ARE AS UN DER: 8. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE O RDERS OF THE AUTHORITIES BELOW AND ALSO GONE THROUGH THE DO CUMENTS AND ORDERS REFERRED TO BEFORE US BY BOTH THE PARTIE S. THE ISSUE IN THE PRESENT APPEAL PERTAINS TO LEVY OF FEES U/S 234E ON ACCOUNT OF LATE FILING OF TDS RETURNS. THE FACTS O N RECORD ARE THAT THE SAID FEES WERE LEVIED WHILE PROCESSING THE TDS RETURNS FILED BY THE ASSESSEE AS PER THE PROVISIONS OF SECTION 200A OF THE ACT AND FURTHER THAT FEES IN ALL THE ABOV E CASES WAS LEVIED PRIOR TO 01.06.2015. FURTHER, WE HAVE NOTED THAT THE PROVISIONS OF SECTION 234E FOR LEVY OF FEES ON A CCOUNT OF 11 LATE FILING OF TDS RETURNS WAS BROUGHT ON THE STATU TE VIDE FINANCE ACT, 2012 W.E.F. 01.07.2012 AND ALSO THAT SECTIO N 200A, WHICH DEALS WITH THE PROCESSING OF TDS RETURNS, GAVE NO MANDATE TO MAKE ADJUSTMENTS ON ACCOUNT OF LEVY OF FEES U/S 234E PRIOR TO 01.06.2015 AND THAT THE SAME WAS BR OUGHT ON THE STATUTE ONLY VIDE FINANCE ACT, 2015 W.E.F. 01.0 6.2015. THE OTHER RELEVANT SECTION TAKEN NOTE OF IS THE PRO VISIONS OF SECTION 246A WHICH LISTS THE ORDERS AGAINST WHICH AP PEAL LIES TO THE CIT(A) AND WHICH WE FIND THAT THE SAME INCLUDE S INTIMATIONS PASSED U/S 200A OF THE INCOME TAX ACT FO R THE RELEVANT ASSESSMENT YEAR. 9. IN THE ABOVE FACTUAL AND LEGAL BACKGROUND, WE SHALL NOW PROCEED TO ADJUDICATE THE ISSUE BEFORE US. THE LD. CIT(A), AS WE FIND, DISMISSED ASSESSEES APPEAL HOLDING THEM TO BE NON MAINTAINABLE AND THE REASON FOR THE SAME WAS THE OBSERVATIONS IN THE ORDERS PASSED BY THE HON'BLE BOM BAY HIGH COURT AND THE HON'BLE RAJASTHAN HIGH COURT THAT NO APPEAL LIES AGAINST LEVY OF FEES U/S 234E. WE ARE NOT IN AGREEMENT WITH THE LD. CIT(A) ON THIS ISSUE. AS POINTED OUT ABOVE, THE FEES U/S 234E IN THE PRESENT CASE WAS LEVI ED IN THE INTIMATIONS MADE U/S 200A OF THE ACT. SUCH INTIMATION S ARE APPEALABLE BEFORE THE CIT(A) AS PER THE PROVISIONS OF SECTION 246A OF THE ACT AND IN THE PRESENT CASE, THE ASSESSE E HAD FILED APPEALS AGAINST THESE INTIMATIONS MADE U/S 200A. THEREFORE, ALL THE APPEALS WERE MAINTAINABLE AND THE LD. CIT(A) HAD WRONGLY DISMISSED THE ASSESSEES APPEALS HO LDING THEM TO BE NON-MAINTAINABLE. AS FOR THE RELIANCE PLAC ED BY THE CIT(A) ON THE ORDERS PASSED BY THE HON'BLE BOMBAY HIGH COURT AND HON'BLE RAJASTHAN HIGH COURT, WE FIND THAT THE SAID JUDGEMENTS HAVE BEEN MIS-INTERPRETED BY THE CI T(A). IN BOTH THESE CASES, THE CONSTITUTIONAL VALIDITY OF SECTIO N 234E WAS CHALLENGED BEFORE THE HON'BLE HIGH COURTS AND ONE OF THE PLEAS TAKEN BY THE COUNSELS OF THE ASSESSEES AGAINST THE INTRODUCTION OF THE SAID SECTION IN THE STATUTE WAS THAT THERE WAS NO PROVISION FOR FILING APPEALS AGAINST THE ORDE RS PASSED LEVYING FEES U/S 234E. IT WAS IN THIS CONTEXT THAT TH E HON'BLE HIGH COURT HELD THAT EVEN IF NO APPEAL LAY AGAINST LEV Y OF FEES U/S 234E, THE REMEDY OF WRIT STILL REMAINED WITH THE AGGRIEVED PARTIES AND THEREFORE, THE CONSTITUTIONAL VA LIDITY OF THE SAID SECTION COULD NOT BE CHALLENGED ON THIS GROUN D. IT MAY BE NOTED THAT THE OBSERVATION OF THE HON'BLE HIG H COURTS WAS IN THE CONTEXT OF NO APPEAL LYING AGAINST THE LEV Y OF FEES U/S 234E PER-SE, BUT WHERE FEES ARE LEVIED BY WAY OF ADJUSTMENT MADE IN INTIMATIONS U/S 200A, THE SAID INTIMATIONS ARE APPEALABLE AS PER THE STATUTE BEFORE THE CIT(A). IN SUCH CASES, THE LEVY OF FEES IS CHALLENGED BY WAY OF FILING APPEALS AGAINST THE INTIMATIONS PASSED AGAINST SECTION 200A AND THIS IS THE DISTINGUISHING FACT BETWEEN TH E OBSERVATIONS MADE BY THE HON'BLE COURTS WHERE THEY OBSERVED THAT NO APPEAL LAY AGAINST LEVY OF FEES U/S 234E. THE HON'BLE HIGH COURTS, OBVIOUSLY WERE NOT SEIZED WIT H THE ADJUSTMENT OF LEVY OF FEES U/S 234E IN INTIMATIONS MAD E U/S 200A AND THEREFORE, THIS OBSERVATION OF THE HON'BLE HI GH COURT CANNOT BE READ TO BE IN THE CONTEXT OF ADJUSTMENT M ADE ON 12 ACCOUNT OF LEVY OF FEES U/S 234E IN THE INTIMATIONS PASSED U/S 200A WHICH, OTHERWISE, ARE APPEALABLE BEFORE THE CIT(A) . IN VIEW OF THE ABOVE, THE ORDER PASSED BY THE LD. CIT(A), W E HOLD, IS NOT AS PER LAW. 10. NOW COMING TO THE MERITS OF THE CASE, WE FIND FO RCE IN THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT PRIOR TO 01.06.2015, THERE WAS NO MANDATE, AS PER THE STATUTE, TO MAKE ANY ADJUSTMENT ON ACCOUNT OF LEVY OF FEES U/S 2 34E WHILE PROCESSING TDS RETURNS U/S 200A. WE HAVE TAKE N NOTE OF THE ORDER OF THE HON'BLE GUJARAT HIGH COURT HOLDI NG THE AMENDMENT MADE TO SECTION 200A W.E.F. 01.06.2015, GIV ING POWER TO MAKE ADJUSTMENT ON ACCOUNT OF FEES U/S 234 E WHILE PROCESSING RETURNS U/S 200A, TO BE RETROSPECTIVE IN NATURE, STATING THAT THIS POWER GIVEN TO THE AO IS A MACHIN ERY PROVISION WHILE THE SUBSTANTIVE PROVISION OF THE POW ER TO LEVY FEES U/S 234E WAS ALWAYS THERE ON THE STATUTE FROM 01.06.2012. BUT AT THE SAME TIME, WE NOTE THAT THE HON' BLE KARNATAKA HIGH COURT HELD THAT LEVY OF FEES U/S 234E WHILE PROCESSING RETURNS, TDS U/S 200A PRIOR TO 01.06.2015 W AS WITHOUT ANY AUTHORITY OF LAW. WITH TWO DIVERGENT VIEW S OF THE HON'BLE HIGH COURTS ON THE ISSUE AND IN THE ABSENCE OF ANY DECISION BY THE JURISDICTIONAL HIGH COURT, WE CONCUR WITH THE LD. COUNSEL FOR THE ASSESSEE THAT AS PER THE WELL ACCEP TED RULE OF CONSTRUCTION IF TWO REASONABLE CONSTRUCTIONS OF A STATUTE ARE POSSIBLE THE CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. IN VIEW OF THE SAME, RESPECTFULLY FOLLOWING THE DECISION OF THE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI (SUPRA), WE HOLD THAT THE FEES LEVIED IN ALL THE PRESENT CASES U/S 234E PRIOR TO 01.06.2015 IN THE INTIMATIONS MADE U/S 200A WAS WITHOUT AUTHORITY OF LAW AND THE SAME IS , THEREFORE, DIRECTED TO BE DELETED. IN VIEW OF THE ABO VE, ALL THE APPEALS OF THE ASSESSEES STAND ALLOWED. 15. IN VIEW OF THE AFORESAID DECISION OF THE ITAT, NO FEES IN ANY CASE COULD HAVE BEEN CHARGED PRIOR TO 01.06.201 5. THEREFORE ALSO THERE WAS NO MISTAKE IN THE ORIGINAL INTIMATION MADE IN THE PRESENT CASE U/S 200A OF THE ACT PRIOR TO 01.06.2015, BY NOT CHARGING FEES U/S 234E OF THE ACT. AND THE SAME COULD NOT HAVE BEEN CHARGED NOW B Y WAY OF PASSING AN ORDER U/S 154 OF THE ACT. 16. FOR THE ABOVE REASONS WE HOLD THAT NO FEES COUL D BE CHARGED IN THE PRESENT CASE U/S 234E IN THE ORDER P ASSED U/S 154 OF THE ACT. 13 17. SINCE WE HAVE DELETED THE FEES CHARGED U/S 234E ON THE LEGAL GROUND RAISED, WE SEE NO REASON TO DEAL W ITH THE REMAINING GROUNDS RAISED BY THE ASSESSEE ON THE MER ITS OF THE ISSUE IN GROUND NOS.1 AND 3. AS FOR GROUND NO.2 NO ARGUMENTS WERE MADE BEFORE US AND THE SAME IS, THER EFORE, DISMISSED. THE APPEAL OF THE ASSESSEE IS, THEREFORE, PARTLY ALLOWED. 18. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE STAND PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28 TH MAY, 2018 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH