Direx Systems Limited, CHENNAI V. ACIT CPC-TDS, Ghaziabad

ITA 1097/CHNY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7443 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 15-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G N RAGHAVENDRA RAO IRS JCIT
• Keywords: Retrospective amendment; Reasonable cause; TDS; Set aside
• Section: 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI , . , [BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ] !' ./I.T.A. NOS.1091, 1092, 1093, 1094, 1095, 1096, 10 97, 1098, 1099, 1100, 1101, 1102 & 1103/CHNY/2019 #$% &$ / ASSESSMENT YEARS : 2013-14 (Q2), 2013-14 (Q3) , 2013-14 (Q4), 2014-15 (Q1), 2014-15 (Q2), 2014-15 ( Q3), 2013-14 (Q4), 2014-15 (Q1), 2014-15 (Q2), 2014-15 (Q3), 201 4-15 (Q4), 2015- 16 (Q1) & 2015-16 (Q2) M/S. DIREX SYSTEMS LTD, NO.Q-104, 3 RD AVENUE, ANNA NAGAR, CHENNAI 600 040. [PAN AABCD0699Q] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRALIZED PROCESSING CELL (TDS) GHAZIABAD. ( / APPELLANT) ( /RESPONDENT) !' '( ) * / APPELLANT BY : SHRI. K. GOPAL, FCA +,'( ) * /RESPONDENT BY : SHRI. G.N. RAGHAVENDRA RAO, IRS, JCIT. # - ) . /DATE OF HEARING : 22-07-2019 /0&% ) . /DATE OF PRONOUNCEMENT : 23-07-2019 / O R D E R PER BENCH:- THESE THIRTEEN APPEALS HAVE BEEN FILED BY THE ASS ESSEE DIRECTED AGAINST THE COMMON ORDER OF THE LEARNED COMMISSIONE R OF INCOME TAX ITA NOS.1091-1103/2019. :- 2 -: (APPEALS)-17, CHENNAI (HEREINAFTER CALLED AS CIT(A )) DATED 27.11.2018 FOR THE ASSESSMENT YEARS 2013-14 (Q2), 2013-14 (Q3), 2013-14 (Q4), 2014-15 (Q1), 2014-15 (Q2), 2014-15 ( Q3), 2013-14 (Q4), 2014-15 (Q1), 2014-15 (Q2), 2014-15 (Q3), 201 4-15 (Q4), 2015- 16 (Q1) & 2015-16 (Q2) RESPECTIVELY. 2. SINCE, THE IDENTICAL FACTS AND ISSUES ARE INVOLVED IN THESE APPEALS, WE PROCEED TO DISPOSE THE SAME VIDE THIS C OMMON ORDER. 3. THE APPEALS HAS BEEN FILED WITH A DELAY OF SIXTY TWO DAYS. THE ASSESSEE FILED PETITIONS REQUESTING FOR CON DONING THE DELAY BY STATING THAT THERE IS NO SIGNATORY OR AUTHORIZED RE PRESENTATIVE AVAILABLE IN INDIA TO EXECUTE THE DOCUMENTS TO BE FILED BEF ORE THE HONBLE TRIBUNAL. REASON SHOWN FOR THE DELAY IS REASONABLE CAUSE. LD. DEPARTMENTAL REPRESENTATIVE DID NOT RAISE ANY SERI OUS OBJECTION. HENCE DELAYS IS CONDONED. APPEALS ARE ADMITTED FO R ADJUDICATION. 4. FOR THE SAKE OF CONVENIENCE AND CLARITY THE FACTS R ELEVANT IN ITA NO.1091/CHNY/2019 FOR ASSESSMENT YEAR 2013-14 (Q2) ARE STATED HEREIN. 5. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : ITA NOS.1091-1103/2019. :- 3 -: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) IS CONTRARY TO THE LAW AND FACTS OF THE C ASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THE PROVISIONS OF SECTION 200A P RIOR TO AMENDMENT AS ON 01.06.2015 AND NOT CHARGE 234E PENA LTY IN THE CASE OF APPELLANT. 3. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE SEEN JUDGEMENT ISSUED BY THE HON. INCOME TA X APPELLATE TRIBUNAL A BENCH CHENNAI IN THE CASE OF S MT G INDIRANI VS DEPUTY COMMISSIONER OF INCOME TAX(CPC). 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS QUOTED CERTAIN CASE LAWS REGARDING THE CONSTITUTION AL VALIDITY REGARDING SECTION 234E WHICH HAS NO RELEVANCE TO TH E CASE OF APPELLANT AND POINT AT ISSUE. 5. THE LEARNED ASSISTANT COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE SEEN THAT THE AMENDMENT OF SE CTION 200A IS ONLY PERSPECTIVE AND HENCE EFFECTIVE FROM 01.06.2015 AND THEREAFTER ONLY. 6. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT NAMELY M/S. DIREX SYSTEMS LIMITED IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956. DURING THE FINANCIAL YEAR 2012-13 (Q2) THE APPELLA NT HAD DEDUCTED TAX AT SOURCE AND PAID TO THE CENTRAL GOVERNMENT. THE APPLICABLE QUARTERLY STATEMENT WAS FILED BELATEDLY ON 26.07.20 13 AND IT WAS PROCESSED ON 27.04.2014 AND LEVIED LATE FEE OF RS. 32,046/- U/S. 234E OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). ITA NOS.1091-1103/2019. :- 4 -: 7. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE LD. CIT(A), WHO VIDE IMPUGNED ORDER CONFIRMED THE LEVY OF LATE FEES U/S. 234E OF THE ACT. BEING AGGRIEVED, THE APPELLANT IS IN APPE AL BEFORE US IN THE PRESENT APPEAL. 8. THE ISSUE IN THE PRESENT APPEAL IS DECIDED IN FAVOU R OF THE ASSESSEE BY THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS VS. UNION OF INDIA & ORS. 73 TAXMANN.COM 252 , WHEREIN IT WAS HELD AS FOLLOWS. 17. THE EXAMINATION OF THE AFORESAID CONTENTIONS SHOW THAT, S. 234E HAS COME INTO FORCE ON 1ST JULY, 2012. THER EFORE, ONE MAY AT THE FIRST BLUSH SAY THAT, SINCE S. 234E IS A CHARGING SECTION FOR FEE, THE LIABILITY WAS GENERAT ED OR HAD ACCRUED, IF THERE WAS FAILURE TO DELIVER OR CAUSE T O BE DELIVERED THE STATEMENT/S OF TDS WITHIN THE PRESCRI BED TIME. BUT, IN OUR VIEW, S. 234E CANNOT BE READ IN ISOLATI ON AND IS REQUIRED TO BE READ WITH THE MECHANISM AND THE MODE PROVIDED FOR ITS ENFORCEMENT. AS OBSERVED BY US HER EINABOVE, WHEN S. 234E WAS INSERTED IN THE ACT SIMULTANEOUSLY , S. 271H WAS ALSO INSERTED IN THE ACT PROVIDING FOR THE PENALTY FOR FAILURE OF FURNISHING OF STATEMENTS ETC. THEREF ORE, IF THERE WAS FAILURE TO SUBMIT THE STATEMENT FOR TDS AS PER S. 234E, THE FEE PAYABLE IS PROVIDED BUT THE MECHANISM PROVI DED WAS THAT IF THERE WAS FAILURE TO FURNISH STATEMENTS WIT HIN THE PRESCRIBED DATE, THE PENALTY UNDER S. 271H(1) AND ( 2) COULD BE IMPOSED. HOWEVER, UNDER SUB-S. (3) OF S 271H, TH E EXCEPTION IS PROVIDED THAT NO PENALTY SHALL BE LEVI ED FOR THE FAILURE REFERRED TO UNDER CL. (A) OF SUB-S. (1) IF THE PERSON PROVES THAT AFTER PAYING TDS WITH THE FEE AND INTER EST THE AMOUNT IS CREDITED AND HE HAD DELIVERED OR CAUSED T O DELIVER THE STATEMENT WITHIN ONE YEAR FROM THE TIME PRESCRI BED FOR SUBMISSION OF THE SAID STATEMENT. TO PUT IT IN OTHE R WORDS, FOR FAILURE TO SUBMIT THE STATEMENTS, THE PENALTY P ROVIDED UNDER S. 271(L)(A) CANNOT BE IMPOSED IF THE DEDUCTO R COMPLIES WITH THE REQUIREMENT OF SUB-S. (3) OF S. 2 71H. ITA NOS.1091-1103/2019. :- 5 -: HENCE, IT CAN BE SAID THAT THE FEE PROVIDED UNDER S , 234E WOULD TAKE OUT FROM THE RIGORS OF PENALTY UNDER S. 271H BUT OF COURSE SUBJECT TO THE OUTER LIMIT OF ONE YEAR AS PRESCRIBED UNDER SUB-S. (3) OF S. 271H. IT CAN ALSO BE SAID TH AT WHEN THE PARLIAMENT INTENDED TO INSERT THE PROVISIONS OF S. 234E PROVIDING FOR FEE SIMULTANEOUSLY THE UTILITY OF SUC H FEE WAS FOR CONFERRING THE PRIVILEGE TO THE DEFAULTER-DEDUC TOR TO COME OUT FROM THE RIGORS OF PENAL PROVISION OF S. 271H. BE IT RECORDED THAT, PRIOR TO S. 271H OF THE ACT INSERTED IN THE STATUTE BOOK, THE ENFORCEABILITY OF REQUIREMENT TO FILE RETURN UNDER S. 200(3) AND S. 206C(3) WAS BY VIRTUE OF S. 272A(2)(K) OF THE ACT WHICH PROVIDED FOR THE PENALT Y OF RS. 100 PER DAY FOR EACH DAY OF DEFAULT IN FILING TDS S TATEMENTS. BUT, WHEN S. 234E WAS INSERTED W.E.F. 1ST JULY, 201 2 SIMULTANEOUSLY, A SECOND PROVISO WAS ADDED UNDER S. 272A(2) W.E.F. 1ST JULY, 2012 AS UNDER : '272A. PENALTY FOR FAILURE TO ANSWER QUESTIONS, SIG N STATEMENTS, FURNISH INFORMATION, RETURNS OR STATEME NTS, ALLOW INSPECTIONS, ETC. (1)..... (2) IF ANY PERSON FAILS (A) TO COMPLY WITH A NOTICE ISSUED UNDER SUB-S. (6) OF S. 94; OR (B) TO GIVE THE NOTICE OF DISCONTINUANCE OF HIS BUS INESS OR PROFESSION AS REQUIRED BY SUB-S. (3) OF S. 176; OR (C) TO FURNISH IN DUE TIME ANY OF THE RETURNS, STATEMENTS OR PARTICULARS MENTIONED IN S. 133 OR S. 206 OR S. 206C OR S. 285B; OR (D) TO ALLOW INSPECTION OF ANY REGISTER REFERRED TO IN S. 134 OR OF ANY ENTRY IN SUCH REGISTER OR TO ALLOW CO PIES OF SUCH REGISTER OR OF ANY ENTRY THEREIN TO BE TAKE N; OR (E) TO FURNISH THE RETURN OF INCOME WHICH HE IS REQ UIRED TO FURNISH UNDER SUB-S. (4A) OR SUB-S. (4G) OF S. 1 39 OR TO FURNISH IT WITHIN THE TIME ALLOWED AND IN THE MA NNER REQUIRED UNDER THOSE SUB-SECTIONS; OR (F) TO DELIVER OR CAUSE TO BE DELIVERED IN DUE TIME A COPY OF THE DECLARATION MENTIONED IN S. 197A; OR (G) TO FURNISH A CERTIFICATE AS REQUIRED BY S. 203 OR S. 206C; OR ITA NOS.1091-1103/2019. :- 6 -: (H) TO DEDUCT AND PAY TAX AS REQUIRED BY SUB-S. (2) OF S. 226; (I) TO FURNISH A STATEMENT AS REQUIRED BY SUB-S. (2 C) OF S. 192; (J) TO DELIVER OR CAUSE TO BE DELIVERED IN DUE TIME A COPY OF THE DECLARATION REFERRED TO IN SUB-S. (1A) OF S. 206C; (K) TO DELIVER OR CAUSE TO BE DELIVERED A COPY OF T HE STATEMENT WITHIN THE TIME SPECIFIED IN SUB-S. (3) O F S. 200 OR THE PROVISO TO SUB-S. (3) OF S. 206C; (1) TO DELIVER OR CAUSE TO BE DELIVERED THE STATEME NTS WITHIN THE TIME SPECIFIED IN SUB-S. (1) OF S. 206A; (M) TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME AS MAY BE PRESCRIBED UNDER SUB-S. (2A) OF S. 200 OR SUB-S. (3A) OF S. 206C, HE SHALL PAY, BY WAY OF PENALTY, A SUM OF ONE HUNDR ED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES : PROVIDED THAT THE AMOUNT OF PENALTY FOR FAILURES IN RELATION TO A DECLARATION MENTIONED IN S. 197A, A CERTIFICATE AS REQUIRED BY S. 203 AND RETURNS UNDER SS. 206 AND 206C AND [STATEMENTS UNDER SUB-S. (2A) OR SUB-S. (3) OF S. 200 OR THE PROVISO TO SUB-S. (3) O R UNDER SUB-S. (3A) OF S. 206C] SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CAS E MAY BE : PROVIDED FURTHER THAT NO PENALTY SHALL BE LEVIED UN DER THIS SECTION FOR THE FAILURE REFERRED TO IN CL. (K) , IF SUCH FAILURE RELATES TO A STATEMENT REFERRED TO IN SUB-S . (3) OF S. 200 OR THE PROVISO TO SUB-S. (3) OF S. 206C W HICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TA X DEDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS T HE CASE MAY BE, ON OR AFTER'THE 1ST DAY OF JULY, 2012. ........' 18. THE AFORESAID SHOWS THAT IN THE CL. (K) IF THE SAID FAILURE RELATES TO A STATEMENT REFERRED TO IN SUB-S. (3) OF S. 200 OR THE SUB-S. (3) OF S. 206C, NO PENALTY SHALL BE IMPO SED FOR TDS AFTER 1ST JULY, 2012. ITA NOS.1091-1103/2019. :- 7 -: 19. HENCE, IT CAN BE SAID THAT, THE MECHANISM PROVI DED FOR ENFORCEABILITY OF S. 200(3) OR 206C(3) FOR FILING O F THE STATEMENT BY MAKING IT PENAL UNDER S. 272A(2)(K) IS DONE AWAY IN VIEW OF THE INSERTION OF S. 271H PROVIDING FOR PENAL PROVISION FOR SUCH FAILURE TO SUBMIT RETURN. WHEN T HE PARLIAMENT HAS SIMULTANEOUSLY BROUGHT ABOUT S. 234E , S. 271H AND THE AFORESAID PROVISO TO S. 272A(2), IT CA N BE SAID THAT, THE FEE PROVIDED UNDER S. 234E IS CONTEMPLATE D TO GIVE A PRIVILEGE TO THE DEFAULTER TO COME OUT FROM THE R IGORS OF PENALTY PROVISION UNDER S. 271H(L)(A) IF HE PAYS TH E FEE WITHIN ONE YEAR AND COMPLIES WITH THE REQUIREMENT O F SUB-S. (3) OF S. 271H. 20. IN VIEW OF THE AFORESAID OBSERVATIONS AND DISCU SSION, TWO ASPECTS MAY TRANSPIRE ONE, FOR S. 234E PROVIDING, F OR 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 PRESENT CASE IS TO COME OUT FROM RIGORS OF PENAL PR OVISION OF S. 271H(L)(A), IT CANNOT BE SAID THAT THE PROVISION S OF FEE SINCE CREATES A COUNTER BENEFIT OR RECIPROCAL BENEF IT IN FAVOUR OF THE DEFAULTER IN THE RIGORS OF THE PENAL PROVISI ON, THE PROVISIONS OF S. 234E WOULD MEET WITH THE TEST OF Q UID PRO QUO. 21. HOWEVER, IF S. 234E PROVIDING FOR FEE WAS BROUG HT ON THE STATUTE BOOK, KEEPING IN VIEW THE AFORESAID PURPOSE AND THE INTENTION THEN, THE OTHER MECHANISM PROVIDED FOR COMPUTATION OF FEE AND FAILURE FOR PAYMENT OF FEE U NDER S. 200A WHICH HAS BEEN BROUGHT ABOUT W.E.F. 1ST JUNE, 2015 CANNOT BE SAID AS ONLY BY WAY OF A REGULATORY MODE OR A REGULATORY MECHANISM BUT IT CAN RATHER BE TERMED AS CONFERRING SUBSTANTIVE POWER UPON THE AUTHORITY. IT IS TRUE THAT, A REGULATORY MECHANISM BY INSERTION OF ANY PR OVISION MADE IN THE STATUTE BOOK, MAY HAVE A RETROACTIVE CH ARACTER BUT, WHETHER SUCH PROVISION PROVIDES FOR A MERE REG ULATORY MECHANISM OR CONFERS SUBSTANTIVE POWER UPON THE AUT HORITY WOULD ALSO FOE A ASPECT WHICH MAY BE REQUIRED TO BE CONSIDERED BEFORE SUCH PROVISION IS HELD TO BE RETR OACTIVE IN NATURE. FURTHER, WHEN ANY PROVISION IS INSERTED FOR LIABILITY TO PAY ANY TAX OR THE FEE BY WAY OF COMPENSATORY IN NA TURE OR FEE INDEPENDENTLY SIMULTANEOUSLY MODE AND THE MANNE R OF ITS ENFORCEABILITY IS ALSO REQUIRED TO BE CONSIDERE D AND EXAMINED. NOT ONLY THAT, BUT, IF THE MODE AND THE M ANNER IS NOT EXPRESSLY PRESCRIBED, THE PROVISIONS MAY ALSO B E VULNERABLE. ALL SUCH ASPECTS WILL BE REQUIRED TO BE CONSIDERED BEFORE ONE CONSIDERS REGULATORY MECHANISM OR PROVIS ION FOR REGULATING THE MODE AND THE MANNER OF RECOVERY AND ITS ENFORCEABILITY AS RETROACTIVE. IF AT THE TIME WHEN THE FEE WAS ITA NOS.1091-1103/2019. :- 8 -: PROVIDED UNDER S. 234E, THE PARLIAMENT ALSO PROVIDE D FOR ITS UTILITY FOR GIVING PRIVILEGE UNDER S. 271H(3) THAT TOO BY EXPRESSLY PUT BAR FOR PENALTY UNDER S. 272A BY INSE RTION OF PROVISO TO S. 272A(2), IT CAN BE SAID THAT A PARTIC ULAR SET UP FOR IMPOSITION AND THE PAYMENT OF FEE UNDER S. 234E WAS PROVIDED BUT, IT DID NOT PROVIDE FOR MAKING OF DEMA ND OF SUCH FEE UNDER S. 200A PAYABLE UNDER S. 234E. HENCE, CON SIDERING THE AFORESAID PECULIAR FACTS AND CIRCUMSTANCES, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE LEARNED COUNSEL FOR RESPONDENT-REVENUE THAT INSERTION OF CL. (C) TO (F) UNDER S. 200A(1) SHOULD BE TREATED AS RETROACTIVE IN CHARACT ER 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 P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFE CT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY CL. (C) TO (F) OF SUB-S. (1) O F S. 20QA CAN BE READ AS HAVING PROSPECTIVE EFFECT AND NOT HA VING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE D EMAND UNDER S. 200A FOR COMPUTATION AND INTIMATION FOR TH E PAYMENT OF FEE UNDER S. 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER S. 200A BY THE RE SPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PR IOR TO 1ST JUNE, 2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER S. 200A, THE AFORESAID VIEW WILL NOT PERMIT THE DEDUCT OR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST. 23. IN VIEW OF THE AFORESAID OBSERVATION AND DISCUS SION, SINCE THE IMPUGNED INTIMATION GIVEN BY THE RESPONDENT- DEPARTMENT AGAINST ALL THE APPELLANTS UNDER S. 200A ARE SO FAR AS THEY ARE FOR THE PERIOD PRIOR TO 1ST JUNE, 2 015 CAN BE SAID AS WITHOUT ANY AUTHORITY UNDER LAW. HENCE, THE SAME CAN BE SAID AS ILLEGAL AND INVALID. 24. IF THE FACTS OF THE PRESENT CASES ARE EXAMINED IN LIGHT OF THE AFORESAID OBSERVATION AND DISCUSSION, IT APPEAR S THAT IN ALLT MATTERS, THE INTIMATION GIVEN IN PURPORTED EXE RCISE OF POWER UNDER S. 200A ARE IN RESPECT OF FEES UNDER S. 234E FOR THE PERIOD PRIOR TO 1ST JUNE, 2015. AS SUCH, IT IS ON ACCOUNT OF THE INTIMATION GIVEN MAKING DEMAND OF THE FEES I N PURPORTED EXERCISE OF POWER UNDER S. 200A, THE SAME HAS NECESSITATED THE APPELLANT-ORIGINAL PETITIONER TO C HALLENGE THE VALIDITY OF S. 234E OF THE ACT. IN VIEW OF THE REAS ONS RECORDED BY US HEREINABOVE, WHEN THE AMENDMENT MADE UNDER S. ITA NOS.1091-1103/2019. :- 9 -: 200A OF THE ACT WHICH HAS COME INTO EFFECT ON 1ST J UNE, 2015 IS HELD TO BE HAVING PROSPECTIVE EFFECT, NO COMPUTA TION OF FEE FOR THE DEMAND OR THE INTIMATION FOR THE FEE UNDER S. 234E COULD BE MADE FOR THE TDS DEDUCTED FOR THE RESPECTI VE ASSESSMENT YEAR PRIOR TO 1ST JUNE, 2015. HENCE, THE DEMAND NOTICES UNDER S. 200A BY THE RESPONDENT-AUTHORITY F OR INTIMATION FOR PAYMENT OF FEE UNDER S. 234E CAN BE SAID AS WITHOUT ANY AUTHORITY OF LAW AND THE SAME ARE QUASH ED AND SET ASIDE TO THAT EXTENT. 25. AS SUCH, AS RECORDED EARLIER, IT IS ON ACCOUNT OF THE INTIMATION RECEIVED UNDER S. 200A FOR MAKING COMPUT ATION AND DEMAND OF FEES UNDER S. 234E, THE SAME HAS NECESSITATED THE APPELLANT TO CHALLENGE THE CONSTIT UTIONAL VALIDITY OF S. 234E. WHEN THE INTIMATION OF THE DEM AND NOTICES UNDER S. 200A IS HELD TO BE WITHOUT AUTHORI TY OF LAW SO FAR AS IT RELATES TO COMPUTATION AND DEMAND OF F EE UNDER S. 234E, WE FIND THAT THE QUESTION OF FURTHER SCRUT INY FOR TESTING THE CONSTITUTIONAL VALIDITY OF S. 234E WOUL D BE RENDERED AS AN ACADEMIC EXERCISE BECAUSE THERE WOUL D NOT BE ANY CAUSE ON THE PART OF THE PETITIONERS TO CONT INUE TO MAINTAIN THE CHALLENGE TO CONSTITUTIONAL VALIDITY U NDER S. 234E OF THE ACT. AT THIS STAGE, WE MAY ALSO RECORD THAT THE LEARNED COUNSELS APPEARING FOR THE APPELLANT HAD AL SO DECLARED THAT IF THE IMPUGNED NOTICES UNDER S. 200A ARE SET ASIDE, SO FAR AS IT RELATES TO COMPUTATION AND INTI MATION FOR PAYMENT OF FEE UNDER S. 234E, THE APPELLANT-PETITIO NERS WOULD NOT PRESS THE CHALLENGE TO THE CONSTITUTIONAL VALIDITY OF S. 234E OF THE ACT. BUT, THEY SUBMITTED THAT THE QU ESTION OF CONSTITUTIONAL VALIDITY OF S. 234E MAY BE KEPT OPEN TO BE CONSIDERED BY THE DIVISION BENCH AND THE JUDGMENT O F THE LEARNED SINGLE JUDGE MAY NOT CONCLUDE THE CONSTITUT IONAL VALIDITY OF S. 234E OF THE ACT. 26. UNDER THESE CIRCUMSTANCES, WE FIND THAT NO FURT HER DISCUSSION WOULD BE REQUIRED FOR EXAMINING THE CONS TITUTIONAL VALIDITY OF S. 234E OF THE ACT. SAVE AND EXCEPT TO OBSERVE THAT THE QUESTION OF CONSTITUTIONAL VALIDITY OF S. 234E OF THE ACT BEFORE THE DIVISION BENCH OF THIS COURT SHALL R EMAIN OPEN AND SHALL NOT BE TREATED AS CONCLUDED. AND EVEN THE CO-ORDINATE BENCH OF THE TRIBUNAL HAD FOLLOWED THE ABOVE DECISION IN THE CASE OF SHRI. G.RADHAKRISHNAN VS. DCIT, IN ITA NO.526/CHNY/2018, DATED 30.07.2018 , WHEREIN IT WAS HELD AS FOLLOWS: ITA NOS.1091-1103/2019. :- 10 -: 3. NONE WAS PRESENT FOR THE ASSESSEE, HOWEVER, IT HAS FILED A WRITTEN SUBMISSION, WHEREIN, IT HAS SUBMITTED THAT THE E-TDS STATEMENT SHOULD BE PROCESSED U/S. 200A(1)(C) WHICH WAS INSERTED BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015 ONLY. ACCORDING TO THE PROVISIONS OF SECTION 200A(1), NO INTIMATION CAN BE SENT U/S. 200A, AFTER THE EXPIRY OF ONE YEAR FRO M THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED. IN THIS CASE, THE ASSESSEE FILED THE E-TDS ON 29.06.2013, WHICH WAS P ROCESSED ON 16.01.2014. THE REVISED ORDER, IF ANY, CAN BE PA SSED ON OR BEFORE 31.03.2015 I.E., AFTER ONE YEAR FROM 31.03.2 014. IT HAS FURTHER PLEADED THAT THE ITAT, A BENCH, CHENNAI IN ITS ORDERS IN ITA NOS. 1019, 1020 & 1021/MDS/2015 DATED 10.07.201 5 IN THE CASE OF SMT. G. INDHIRANI VS. THE DEPUTY COMMISSION ER OF INCOME TAX, CPC-TDS, GHAZIABAD HAS SET ASIDE THE IN TIMATION U/S. 200A FOR THE REASON THAT PRIOR TO 01.06.2015, THERE WAS NO ENABLING PROVISION IN SECTION 200A OF THE ACT FOR L EVY OF FEES U/S. 234E WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE. THE ITAT HAS ALSO HELD THAT IT IS OPEN TO THE ASSES SING OFFICER TO PASS A SEPARATE ORDER U/S. 234E OF THE ACT LEVYING FEE, PROVIDED THE LIMITATION FOR SUCH A LEVY DID NOT EXPIRE. THUS , THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THE OFFICER DATE D 27.12.2016 IS BARRED BY LIMITATION. PER CONTRA, THE DR SUPPORT ED THE ORDERS OF THE LD. AO AND THE LD. CIT(A). 4. WE FIND MERIT IN THE SUBMISSIONS MADE BY THE ASSESSEE. AS HELD BY THIS I TAT, THE INTIMATION SENT TO THE ASSESSEE U/S. 200A DATED 16. 01.2014 RAISING THE DEMAND OF RS. 9,000/- U/S. 234E TOWARDS LEVY OF LATE FILING FEE IS INVALID AS THERE WAS NO ENABLING PROV ISION IN SECTION 200A, VIZ., CLAUSE (1)(C) OF SECTION 234E, PRIOR TO 01.06.2015 FOR LEVY OF FEES U/S. 234E WHILE PROCESSING THE STATEME NT OF TAX DEDUCTED AT SOURCE. IT WAS OPEN FOR THE AO TO PASS SEPARATE ORDER U/S. 234E LEVYING THE FEE, PROVIDED THE LIMIT ATION FOR SUCH A LEVY DID NOT EXPIRE. HOWEVER, IN THIS CASE, THE AO HAS NOT PASSED ANY ORDER U/S. 234E INDEPENDENTLY WITHIN 31.03.2015 AND HENCE, THE IMPUGNED ORDER IS SET ASIDE. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, WE ALLO W THE APPEAL FILED BY ASSESSEE. ITA NOS.1092 TO 1103/CHNY/2019:- 8 . SINCE, THE FACTS IN THE PRESENT APPEALS ARE IDENT ICAL TO THE FACTS IN ITA NO.1091/CHNY/2019, FOR THE REASONS MENTIONED THEREIN, WE ALLOW THE APPEALS FILED BY THE ASSESSEE ON THE ABOV E LINES INDICATED IN ITA NOS.1091-1103/2019. :- 11 -: APPEAL ITA NO.1091/CHNY/2019 SUPRA. HENCE, THE ABOV E CAPTIONED APPEALS FILED BY THE ASSESSEE ARE ALLOWED. 9 . IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE IN ITA NOS. 1091 TO 1103/CHNY/2019 ARE ALLOWED. ORDER PRONOUNCED ON 23RD DAY OF JULY, 2019, AT CH ENNAI. SD/- SD/- ( . ! ) (DUVVURU RL REDDY) ' #$ /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER 1 #- / CHENNAI 2# / DATED: 23RD JULY, 2019. KV 3 ) +.4 5' !6 5&. / COPY TO: 1 . !' '( / APPELLANT 3. 7. (!' ) / CIT(A) 5. 5 :; +.#< / DR 2. +,'( / RESPONDENT 4. 7. / CIT 6. ;$ =- / GF