TRIMURTY BUILDCON P. LTD., Jaipur V. DCIT, CPC-TDS, GHAZIABAD

ITA 18/JPR/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4292 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-05-2017
• Assessment Year: misc
• Appeal Filed On: 04-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Retrospective amendment; Reasonable cause; Condonation of delay
• Section: 6

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 18, 19 & 20/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 TRIMURTY BUILDCON P. LTD., C/O CA ABHISHEK MISHRA 601 GEETA ENCLAVE, VINOBHA MARG, C SCHEME, JAIPUR CUKE VS. DCIT-CPC, TDS, GHAZIABAD, UP LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: JPRT01277D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI ROHAN SOGANI & SHRI RAJEEV SOGANI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ASHWINI HOSMANI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 17/10/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 29/10/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THESE ARE THREE APPEALS FILED BY THE RESPECTIVE AS SESSEES AGAINST THE ORDER OF LD. CIT (A)-3, JAIPUR DATED 16.05.2016 FOR ASSESSMENT YEAR 2013-14 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL:- ITA. NO. 18/JP/2017: 1. THE COMMISSIONER OF INCOME TAX, (APPEALS)-3, JA IPUR (THE CIT(A)) ERRED IN FACT AND IN LAW IN CONFIRMING THE LEVY OF FEES FOR ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 2 DELAY IN FILING THE TDS RETURN U/S 234E OF THE INCO ME TAX ACT, 1961 (THE ACT) WITHOUT APPRECIATING THE FACTS AND C IRCUMSTANCES OF THE CASE. THE CIT(A) OUGHT TO HAVE DIRECTED TO W AIVE THE SAID FEES. 2. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN A DJUDICATING AN ISSUE OF VALIDITY OF THE IMPUGNED LEVY OF FEES U /S 234E IN THE ORDER PASSED U/S 200A OF THE ACT. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE POWER TO COLLECT THE FEES BY T HE PRESCRIBED AUTHORITY VESTED IN SUCH AUTHORITY ONLY BY WAY OF S UBSTITUTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FIN ANCE ACT, 2015 W.E.F 01.06.2015. SINCE, PRIOR TO SAID SUBSTATION T HE ASSESSING OFFICER HAD NO AUTHORITY TO CHARGE THE FEES UNDER S ECTION 234E OF THE ACT WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT AND HENCEFORTH LEVY OF FEES U/S 234E IN THE CASE IS WIT HOUT AUTHORITY. ITA. NO. 19/JP/2017: 1. THE COMMISSIONER OF INCOME TAX, (APPEALS)-3, JA IPUR (THE CIT(A)) ERRED IN FACT AND IN LAW IN CONFIRMING THE LEVY OF FEES FOR DELAY IN FILING THE TDS RETURN U/S 234E OF THE INCO ME TAX ACT, 1961 (THE ACT) WITHOUT APPRECIATING THE FACTS AND C IRCUMSTANCES OF THE CASE. THE CIT(A) OUGHT TO HAVE DIRECTED TO W AIVE THE SAID FEES. 2. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN A DJUDICATING AN ISSUE OF VALIDITY OF THE IMPUGNED LEVY OF FEES U /S 234E IN THE ORDER PASSED U/S 200A OF THE ACT. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE POWER TO COLLECT THE FEES BY T HE PRESCRIBED AUTHORITY VESTED IN SUCH AUTHORITY ONLY BY WAY OF S UBSTITUTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FIN ANCE ACT, 2015 ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 3 W.E.F 01.06.2015. SINCE, PRIOR TO SAID S SUBSTATION THE ASSESSING OFFICER HAD NO AUTHORITY TO CHARGE THE FEES UNDER S ECTION 234E OF THE ACT WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT AND HENCEFORTH LEVY OF FEES U/S 234E IN THE CASE IS WIT HOUT AUTHORITY. ITA. NO. 20/JP/2017: 1. THE COMMISSIONER OF INCOME TAX, (APPEALS)-3, JA IPUR (THE CIT(A)) ERRED IN FACT AND IN LAW IN CONFIRMING THE LEVY OF FEES FOR DELAY IN FILING THE TDS RETURN U/S 234E OF THE INCO ME TAX ACT, 1961 (THE ACT) WITHOUT APPRECIATING THE FACTS AND C IRCUMSTANCES OF THE CASE. THE CIT(A) OUGHT TO HAVE DIRECTED TO W AIVE THE SAID FEES. 2. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN A DJUDICATING AN ISSUE OF VALIDITY OF THE IMPUGNED LEVY OF FEES U /S 234E IN THE ORDER PASSED U/S 200A OF THE ACT. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE POWER TO COLLECT THE FEES BY T HE PRESCRIBED AUTHORITY VESTED IN SUCH AUTHORITY ONLY BY WAY OF S UBSTITUTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FIN ANCE ACT, 2015 W.E.F 01.06.2015. SINCE, PRIOR TO SAID SUBSTATION T HE ASSESSING OFFICER HAD NO AUTHORITY TO CHARGE THE FEES UNDER S ECTION 234E OF THE ACT WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT AND HENCEFORTH LEVY OF FEES U/S 234E IN THE CASE IS WIT HOUT AUTHORITY. 2. AT THE OUTSET, IT IS NOTED THAT THERE HAS BEEN A DELAY IN FILING THE PRESENT SET OF APPEALS. IN ITS CONDONATION PETITIO N, THE ASSESSEE HAS SUBMITTED THAT THE CONCERN EMPLOYEE WHO WAS RESPONS IBLE FOR TDS RETURN AND FILING APPEALS AGAINST THE ORDERS RELATE D TO TDS MATTER WAS UNAVAILABLE FOR 4 MONTHS STARTING 1 ST AUGUST, 2016 AND HE CAME BACK ON 1 ST DECEMBER, 2016 AND THEREAFTER, THE ASSESSEE HAS FI LED THE SUBJECT ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 4 APPEAL. IT WAS SUBMITTED THAT EVEN THOUGH THE ORDER OF THE LD. CIT(A) WAS RECEIVED BY THE COMPANY ON 15.06.2016. HOWEVER, DUE TO NON- AVAILABILITY OF THE CONCERN EMPLOYEE WHO WAS HANDLI NG THE TDS MATTER, THE PRESENT APPEAL COULD NOT BE FILED IN TIME AND I T WAS ACCORDINGLY SUBMITTED THAT THERE WAS A REASONABLE CAUSE FOR DEL AY IN FILING THE PRESENT APPEAL AND IN SUPPORT RELIANCE WAS PLACED O N THE DECISION OF HONBLE SUPREME COURT IN CASE OF COLLECTOR LAND ACQ UISITION VS. MST. KATJI 167 ITR 471. SIMILAR SUBMISSIONS HAVE BEEN M ADE IN RESPECT OF OTHER TWO ASSESSEES WHO ARE PART OF THE SAME GROUP OF COMPANIES. 3. THE LD. DR IS HEARD WHO HAS OPPOSED THE PETITIO N SEEKING CONDONATION OF DELAY IN FILING THE PRESENT APPEALS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS TAKEN THE PLE A THAT DUE TO ABSENCE OF THE CONCERN EMPLOYEE WHO WAS HANDLING TH E TDS AND RELATED TAX MATTERS, THE PRESENT APPEAL COULD NOT B E FILED IN TIME. IN SUPPORT OF ITS CONTENTION, THE ASSESSEE HAS FILED T HE NECESSARY AFFIDAVIT AS WELL AS THE AFFIDAVIT OF THE CONCERN EMPLOYEE WH ICH IS NOT DISPUTED BY THE REVENUE. WE THUS FIND THE REASONS EXPLAINED BY THE ASSESSEE TO BE TRUE AND THE EXPLANATION BONAFIDE AND NOT MALA F IDE. IT IS SETTLED PROPOSITION OF LAW THAT THE COURT SHOULD TAKE A LEN IENT VIEW ON THE MATTER OF CONDONATION OF DELAY PROVIDED THE EXPLANA TION AND REASONS FOR DELAY IS BONAFIDE AND NOT MERELY A DEVICE TO CO VER AN ULTERIOR PURPOSE OR AN ATTEMPT TO SAVE LIMITATION IN AN UNDE RHAND WAY. WHILE CONSTRUING THE SUFFICIENT CAUSE, A LIBERAL VIEW SHO ULD BE TAKEN AND THE COURT SHOULD LEAN IN FAVOUR OF THE PARTY PROVIDED T HE REASONS FOR DELAY ARE BONAFIDE. WHENEVER SUBSTANTIAL JUSTICE AND TECH NICAL CONSIDERATIONS ARE OPPOSED TO EACH OTHER, CAUSE OF SUBSTANTIAL JUS TICE HAS TO BE PREFERRED. ON THE FACTS AND REASONS EXPLAINED BY TH E ASSESSEE, WE ARE ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 5 SATISFIED THAT THE ASSESSEE WAS PREVENTED FROM FILI NG THE APPEAL WITHIN THE PERIOD OF LIMITATION. THEN IN THE FACTS AND CIR CUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE CONDONE THE DELA Y OF 143 DAYS IN FILING THE PRESENT SET OF APPEALS. 5. NOW COMING ON MERITS OF THE CASE, WE TAKE ITA N O. 18/JP/2017 AS THE LEAD CASE WITH THE CONSENT OF BOTH THE PARTI ES FOR THE PURPOSES OF PRESENT DISCUSSIONS. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AO HAS IMPOSED LATE FILING FEES OF RS. 27,800/- U/S 234E W HILE PROCESSING THE TDS RETURN (26Q) U/S 200A OF THE ACT FOR THE FOURTH QUARTER OF THE F.Y 2012-13 RELEVANT TO IMPUGNED ASSESSMENT YEAR AND TH E INTIMATION U/S 200A OF THE ACT WAS PASSED ON 25 TH DECEMBER, 2013. BEFORE THE LD. CIT(A), THE ASSESSEE HAS CONTENDED THAT PRIOR TO 01 .06.2015, THERE WAS NO ENABLING PROVISIONS IN SECTION 200A OF THE ACT F OR MAKING ADJUSTMENT IN RESPECT OF STATEMENT FILED BY THE ASSESSEE WITH REGARD TO TDS BY LEVYING FEE U/S 234E OF THE ACT. THE LD. CIT(A) HOW EVER, REFERRING TO THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN CAS E OF M/S DUNDLOD SHIKSHAN SANSTHAN V. UNION OF INDIA [2015] 63 TAXMA NN.COM 243 AND OTHERS VIDE ORDER DATED 28.07.2015 HAS HELD THAT TH ERE IS NO VALID REASON OR JUSTIFICATION TO INTERFERE WITH THE COMPE NSATORY FEE IMPOSED IN LATE FILING OF THE TDS RETURN. ACCORDINGLY, THE DEM AND RAISED BY THE AO FOR LATE FILING FEE U/S 234E WAS CONFIRMED. NOW, TH E ASSESSEE IS IN APPEAL BEFORE US. 6. DURING THE COURSE OF HEARING, THE LD. AR SUBMIT TED THAT PROVISIONS OF SECTION 200A OF THE IT ACT, 1961, INS ERTED W.E.F. 1.4.2010 ARE SPECIAL PROVISIONS FOR PROCESSING OF THE TDS ST ATEMENTS. THE SECTION SETS OUT SOME EXHAUSTIVE ADJUSTMENTS, WHICH CAN BE MADE WHILE PROCESSING THE STATEMENT. ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 6 6.1 SECTION 234E HAS BEEN INSERTED BY FINANCE ACT, 2012 W.E.F. 1 ST JULY, 2012 WHICH PROVIDES FOR LEVY OF FEE FOR DELAY IN FURNISHING TDS STATEMENT. HENCE, FROM 1 ST JULY, 2012 ONWARDS, A FEE CAN BE LEVIED FOR THE DELAY IN SUBMISSION OF TDS RETURN. 6.2 SECTION 200A WAS AMENDED BY FINANCE ACT 2015 AN D W.E.F 1 ST JUNE, 2015 CLAUSE (C) TO SUBSECTION (1) HAS BEEN SU BSTITUTED. THE UPDATED CLAUSE IS AS UNDER: SECTION 200A - PROCESSING OF STATEMENTS OF TAX DED UCTED AT SOURCE. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE [O R A CORRECTION STATEMENT] HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLO WING MANNER, NAMELY: (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANC E WITH THE PROVISIONS OF SECTION 234E; 6.3 HENCE, FOR THE ABOVE IT IS CLEAR THAT ALTHOUGH PRIO R TO 1.6.2015, FEES U/S 234E CAN BE LEVIED, YET THE SAME CANNOT BE LEVIED WHILE PROCESSING TDS STATEMENT U/S 200A. 6.4 IN THE PRESENT CASE, THE ASSESSEE FILED ITS TDS RETURN FOR Q4 WITH A DELAY OF 139 DAYS ON 01.10.2013. THE SAME WAS PRO CESSED U/S 200A VIDE ORDER DATED 25.12.2013. HOWEVER, LD. AO ERRED IN L EVYING FEES U/S 234E WHILE PROCESSING THE TDS STATEMENT FOR A PERIO D PRIOR TO 1.6.2015. ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 7 6.5 IT WAS SUBMITTED THAT AS PER THE WELL ESTABLISH ED PRINCIPLES OF INTERPRETATION OF STATUTE, UNLESS IT IS EXPRESSLY P ROVIDED OR IMPLIEDLY DEMONSTRATED, ANY PROVISION OF STATUTE IS TO BE REA D AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UN DER THE CIRCUMSTANCES, WE FIND THAT SUBSTITUTION MADE BY CL AUSE (C) OF SUB- SECTION (1) OF SECTION 200A CAN BE READ AS HAVING P ROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. 6.6 THUS THE ACTION OF LD. AO IS BAD IN LAW SINCE T HE IMPUGNED INTIMATION U/S 200A WAS PROCESSED IN THE PERIOD PRI OR TO 1.6.2015. HENCE, THE ACTION OF LD. AO IS OUTSIDE THE SCOPE AN D PURVIEW OF THE SECTION 200A. 6.7 FURTHER, IT IS SUBMITTED THAT LD. CIT(A) HAS MI SPLACED HIS RELIANCE ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COUR T IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN V. UNION OF INDIA [2015] 63 TAXMANN.COM 243. THE HONBLE COURT HAS PLACED RELIANCE ON THE D ECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALI A V. UNION OF INDIA 373 ITR 268 AND HAS ADJUDICATED THE ISSUE REL ATING TO WHETHER THE FEES CHARGED IS LEGAL OR ILLEGAL AND HAS UPHELD THE CONSTITUTIONAL VALIDITY OF LEVY OF FESS U/S 234E. THE COURT HAS NOT TOUCHED UPON THE MECHANISM TO LEVY THE FEES U/S 234E IN THE TDS STAT EMENT PROCESSED U/S 200A. THUS, CIT(A) HAS ERRED IN INTERPRETING TH E DECISION OF HONBLE RAJASTHAN HIGH COURT. 6.8 IT WAS FURTHER SUBMITTED THAT THE ASSESSEES CA SE IS SQUARELY COVERED BY THE UNDERNOTED JUDGMENTS OF HONBLE ITAT JAIPUR, WHICH HAVE ALSO CONSIDERED THE DECISION OF HONBLE RAJAST HAN HIGH COURT IN ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 8 THE CASE OF DUNDLOD SHIKSHAN SANSTHAN (SUPRA ) AND HAVE DECIDED IN THE FAVOUR OF THE ASSESSEE. RELEVANT EXTRACTS HAS BEEN SET OUT HERE FOR YOUR CONVENIENCE. M/S MENTOR INDIA LIMITED VS. DCIT - ITA NO.738/JP/2 016 ..WE FIND THAT THE HONBLE JURISDICTIONAL HIGH COU RT IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (SUPRA ) HAS ITA 738/JP/2016 & ORS. ITAS_ M/S MENTOR INDIA LTD. VS D CIT WITH OTHER 10 CASES 7 ALSO CONSIDERED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS. UNION OF IND IA (2015) 229 TAXMAN 596 WHEREIN THE HON'BLE HIGH COURT HAS DECID ED THE NATURE OF DEMAND. THE HON'BLE HIGH COURT HAS HELD THAT SECTIO N 234E OF THE ACT IS NOT PUNITIVE IN NATURE BUT A FEE WHICH IS A FIXE D CHARGE FOR THE EXTRA SERVICE WHICH THE DEPARTMENT HAS TO PROVE DUE TO TH E LATE FILING OF THE TDS STATEMENTS. HENCE FROM BOTH THE DECISIONS RELIE D UPON BY THE LD. DR, THE ISSUE OF POWER OF IMPOSING LATE FEE IS NOT DECIDED BUT THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF FATHERA J SINGHVI & ORS. VS. UNION OF INDIA & ORS. (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND HELD THAT THE LATE FEE U/S 234E OF THE ACT HAS RAISED VIDE IMPUGNED DEMAND NOTICE U/S 200A OF THE ACT. WE FIND FORCE IN THE CONTENTION OF THE LD. AR OF THE ASSESSEE. IF THERE IS CONFLICTING VIEWS TAKEN BY THE TWO HON'BLE COURTS, THEN THE VIEW, WHI CH FAVOURS THE ASSESSEE SHOULD BE ADOPTED. IN THIS REGARD, THE LD AR OF THE ASSESSEE HAS RELIED ON THE DECISION OF THE HON'BLE SUPREME C OURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP P. LTD. (2014) 367 ITR 466 (SC). IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F CIT VS. VATIKA TOWNSHIP (SUPRA), THE DEMAND SO RAISED ARE DIRECTED TO BE DELETED ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 9 M/S. SANDEEP JHANWAR ADVISORY SERVICES PVT. LTD. VS . THE TDS CPC (ITA NO. 722 & 723/JP/2016) ..WE FIND MERIT INTO THE CONTENTION OF LD. COUNSEL THAT THE JURISDICTIONAL HIGH COURT HAS DECIDED THE VALIDITY OF SECTION 234E, BUT HAS NOT DECIDE THE ISSUE OF POWER OF AO F OR LEVY OF TAX UNDER SECTION 234E IN THE JUDGMENT RENDERED IN THE CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND OTHERS (SUPRA) A S RELIED BY LD. CIT (A). WE HAVE CONSIDERED THE RECENT DECIS ION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF SHRI FA THERAJ SINGHVI & ORS (SUPRA) WHEREIN THE ISSUE OF LEVY OF FEES U/S 234E ON STATEMENTS PROCESSED U/S 200A BEFORE 01.06.2015 HAS BEEN CATEGORICALLY DISCUSSED BY THE HONBLE HIGH COURT A ND IN PARA 24 OF THE SAID ORDER IT WAS HELD THAT NO DEMAND FO R FEE U/S 234E CAN BE MADE IN INTIMATION ISSUED FOR TDS DEDUC TED U/S 200A BEFORE 01.06.2015. WE HAVE ALSO GONE THROUGH THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. VAT IKA TOWNSHIP PVT. LTD. (SUPRA) WHEREIN THE HONBLE APEX COURT HAS DIS CUSSED IN DETAIL THE GENERAL PRINCIPLE OF CONCERNING RETROSPECTIVELY AND HELD THAT UNLESS CONTRARY INTENTION APPEARS, A LEGISLATION IS PRESUM ED NOT TO HAVE A RETROSPECTIVE OPERATION. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF HONBLE SUPREME COURT AND HONBLE KARNATAKA HIGH CO URT, WE SET ASIDE THE ORDER OF LD. CIT (A) AND DIRECT THE AO TO DROP THE DEMAND RAISED OF RS. 4,200/- U/S 234E ON STATEMENTS PROCESSED U/S 20 0A BEFORE 01.06.2015. THUS GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED 6.9 FURTHER, OUR ATTENTION WAS DRAWN TO THE DECISIO N OF COORDINATE BENCH IN THE CASE OF MAHARASHTRA CRICKET ASSOCIATIO N VS. DCIT [2016] 74 TAXMANN.COM 6 (PUNE - TRIB.) WHO ON PLACING RELI ANCE ON THE ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 10 DECISION OF HON'BLE KARNATAKA HIGH COURT IN WRIT AP PEAL NOS.2663- 2674/2015(T-IT) IN FATHERAJ SINGHVI V. UNION OF IND IA [2016] 73 TAXMANN.COM 252 HAS HELD THAT PRIOR TO 1-6-2015, A O DID NOT HAVE POWER TO CHARGE FEES UNDER SECTION 234E WHILE PROCE SSING TDS RETURNS. FURTHER THE HONBLE COURT HAS HELD THAT HONBLE BOM BAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA (SUPRA), HAS NOT UPHELD THE APPLICABILITY OF SECTION 234E OF THE ACT BY THE ASS ESSING OFFICER WHILE PROCESSING TDS STATEMENT FILED BY THE DEDUCTOR PRIO R TO 01.06.2015. RELEVANT EXTRACT HAS BEEN SET OUT HERE FOR THE SAKE OF YOUR CONVENIENCE: ..30. THE HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA'S CASE (SUPRA) HAS UPHELD THE CONSTITUTIONAL VALIDITY OF S AID SECTION INTRODUCED BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015 BUT WAS NOT ABREAST OF THE APPLICABILITY OF THE SAID SECTION 234E OF THE ACT B Y THE ASSESSING OFFICER WHILE PROCESSING TDS STATEMENT FILED BY THE DEDUCTO R PRIOR TO 01.06.2015. IN SUCH SCENARIO, WE FIND NO MERIT IN T HE PLEA OF LEARNED CIT-DR THAT THE HON'BLE BOMBAY HIGH COURT IN RASHMI KANT KUNDALIA'S CASE (SUPRA) HAS LAID DOWN THE PROPOSITION THAT FEE S UNDER SECTION 234E OF THE ACT IS CHARGEABLE IN THE CASE OF PRESENT SET OF APPEALS, WHERE THE ASSESSING OFFICER HAD ISSUED THE INTIMATION UNDER S ECTION 200A OF THE ACT PRIOR TO 01.06.2015. .. 33. WE FURTHER FIND THAT IN RECENT JUDGMENT DATED 2 6.08.2016, THE HON'BLE KARNATAKA HIGH COURT IN WRIT APPEAL NOS.266 3- 2674/2015(T-IT) IN FATHERAJ SINGHVI V. UNION OF IND IA [2016] 73 TAXMANN.COM 252 HAS QUASHED THE INTIMATION ISSUE D UNDER SECTION 200A OF THE ACT LEVYING THE FEES FOR DELAYE D FILING THE TDS STATEMENTS UNDER SECTION 234E OF THE ACT. THE H ON'BLE HIGH COURT NOTES THAT THE FINANCE ACT, 2015 HAD MAD E ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 11 AMENDMENTS TO SECTION 200A OF THE ACT ENABLING THE ASSESSING OFFICER TO MAKE ADJUSTMENTS WHILE LEVYING FEES UNDE R SECTION 234E OF THE ACT WAS APPLICABLE W.E.F. 01.06.2015 AN D HAS HELD THAT IT HAS PROSPECTIVE EFFECT. ACCORDINGLY, THE HO N'BLE HIGH COURT HELD THAT 'INTIMATION RAISING DEMAND PRIOR TO 01.06.2015 UNDER SECTION 200A OF THE ACT LEVYING SECTION 234E OF THE ACT LATE FEES IS NOT VALID'. HOWEVER, THE HON'BLE HIGH COURT KEPT OPEN THE ISSUE ON CONSTITUTIONAL VALIDITY OF SECTION 234 E OF THE ACT. WE HAVE ALREADY REFERRED TO THE DECISION OF HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA'S CASE (SUPRA) IN THIS REGARD, WHEREIN THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT HAS BEEN UPHELD. 34. ACCORDINGLY, WE HOLD THAT THE AMENDMENT TO SECT ION 200A(1) OF THE ACT IS PROCEDURAL IN NATURE AND IN VIEW THEREOF, TH E ASSESSING OFFICER WHILE PROCESSING THE TDS STATEMENTS / RETURNS IN TH E PRESENT SET OF APPEALS FOR THE PERIOD PRIOR TO 01.06.2015, WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, T HE INTIMATION ISSUED BY THE ASSESSING OFFICER UNDER SECTION 200A OF THE ACT IN ALL THESE APPEALS DOES NOT STAND AND THE DEMAND RAISED BY WAY OF CHARGING THE FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. THE INTIMATION ISSUED BY THE ASSESSING OFFICER WAS BEYOND THE SCOPE OF ADJUSTMENT PROVIDED UNDER SECTION 200A OF THE ACT A ND SUCH ADJUSTMENT COULD NOT STAND IN THE EYE OF LAW 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, THE UNDIS PUTED FACTS ARE THAT THE ASSESSEE FILED ITS TDS RETURN (FORM 26Q) FOR TH E FOURTH QUARTER OF FINANCIAL YEAR 2012-13 ON 1.10.2013 AND THE SAME WA S PROCESSED AND INTIMATION UNDER SECTION 200A WAS ISSUED VIDE ORDER DATED 25.12.2013 ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 12 MUCH PRIOR TO THE AMENDMENT TO SECTION 200A OF THE ACT W.E.F. 1.6.2015 EMPOWERING THE ASSESSING OFFICER LEVYING T HE FEES UNDER SECTION 234E OF THE ACT. IT IS THEREFORE NOT A CAS E OF CONTINUING DEFAULT WHERE THE ASSESSEE HAS DEFAULTED IN FURNISHING THE TDS STATEMENT EVEN AFTER 1.6.2015 AND THEREAFTER, THE DEMAND FOR PAYME NT OF FEES UNDER SECTION 234E HAS BEEN RAISED BY THE ASSESSING OFFIC ER. IN CASE OF FATHERAJ SINGHVI (SUPRA), THE HONBLE KARNATAKA HIG H COURT HAS HELD THAT THE PROVISIONS OF AMENDED SECTION 200A ARE PRO SPECTIVE IN NATURE. FURTHER, THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND OTHERS (SUPRA) A S RELIED BY LD. CIT (A) IS IN THE CONTEXT OF VALIDITY OF SECTION 234E, BUT NOT IN THE CONTEXT OF POWER OF AO FOR LEVY OF FEE UNDER SECTION 234E PRIO R TO 1.6.2015. IN VIEW OF THE ABOVE, THE ASSESSING OFFICER WHILE PROC ESSING THE TDS STATEMENTS FOR THE PERIOD PRIOR TO 01.06.2015, WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, T HE DEMAND RAISED BY WAY OF CHARGING THE FEES UNDER SECTION 234E OF T HE ACT IS NOT VALID AND THE SAME IS DELETED. 8. IN ITA NO. 19 & 20/JP/2017, BOTH THE PARTIES FAI RLY SUBMITTED THAT THE FACTS AND CIRCUMSTANCES OF THE CASES ARE EXACTL Y IDENTICAL TO THE FACTS AND CIRCUMSTANCES IN ITA NO. 18/JP/2017. IN I TA NO. 19/JP/17, THE ASSESSEE FILED ITS TDS RETURN (FORM 26Q) FOR TH E FOURTH QUARTER OF FINANCIAL YEAR 2012-13 ON 1.10.2013 AND THE SAME WA S PROCESSED AND INTIMATION ISSUED UNDER SECTION 200A DATED 25.12.20 13. IN ITA NO. 19/JP/17, THE ASSESSEE FILED ITS TDS RETURN (FORM 2 6Q) FOR THE FOURTH QUARTER OF FINANCIAL YEAR 2012-13 ON 29.07.2013 AND THE SAME WAS PROCESSED AND INTIMATION ISSUED UNDER SECTION 200A DATED 25.12.2013. THEREFORE, OUR FINDINGS AND DIRECTIONS CONTAINED IN ITA NO. 18/JP/2017 SHALL ACCORDINGLY APPLY MUTATIS MUTANDIS TO THIS APPEAL AS WELL. IN THE ITA NO. 18, 19 & 20/JP/2017 TRIMURTY BUILDCON P. LTD., JAIPUR VS. DCIT, GHAZIA BAD 13 RESULT, THE DEMAND RAISED BY WAY OF CHARGING THE FE ES UNDER SECTION 234E OF THE ACT IN THESE CASES IS NOT VALID AND THE SAME IS DELETED. IN THE RESULT, THE APPEALS OF THE RESPECTIVE ASSESS EES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/10/2 018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29/10/2018 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- TRIMURTY BUILDCON P. LTD., JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- DCIT- CPC, TDS, GHAZIABAD, UP 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 18, 19 & 20/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR