DCS BOP (P) Ltd., CHENNAI V. DCIT CPC-TDS, GHAZIABAD

ITA 1964/CHNY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6645 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 28-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SUNDARARAJAN CIT
• Assessee Lawyers: MRS MADHUSHRUTHI NEELAKANTHAN
• Keywords: Principle of natural justice; Retrospective amendment; Tax effect; TDS; Set aside
• Section: 250; 234E; 200A; 27; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , . , [BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ] !' ./I.T.A. NOS.1944, 1945, 1946, 1947, 1948, 1949, 1 950, 1951, 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959, 1960 & 1961 /CHNY/2019 #$% &$ / ASSESSMENT YEARS : 2013-14 (Q2), 2013-14 (Q3) , 2013- 14 (Q4), 2013-14 (Q2), 2013-14 (Q3), 2014-15 (Q1) , 2014-15 (Q2), 2014-15 (Q3) 2014-15(Q4), 2014-15 (Q1), 2014-15 (Q 2), 2014-15 (Q3) 2014-15 (Q4), 2015-16 (Q1), 2015-16 (Q2), 2015-16 ( Q3), 2015-16 (Q1) AND 2015-16 (Q2) M/S. D.S.M. SOFT PVT. LTD, NO.1, 15 TH CROSS STREET, SHASTRI NAGAR, ADYAR CHENNAI 600 020. [PAN AAACD 3149A] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRALIZED PROCESSING CELL (TDS) GHAZIABAD. !' ./I.T.A. NOS. 1962, 1963, 1964, 1965, 1966, 1967, 1 968, 1969, 1970 & 1971/CHNY/2019 #$% &$ / ASSESSMENT YEARS :-2014-15 (Q1), 2014-15 (Q2), 20 14- 15(Q3), 2014-15 (Q1), 2014-15 (Q2), 2014-15(Q3), 20 15-16 (Q1), 2015- 16 (Q2), 2015-16 (Q1) AND 2015-16 (Q2). M/S.DCS BPO PVT LTD, NO.1, 15 TH CROSS STREET, SHASTRI NAGAR, ADYAR CHENNAI 600 020. [PAN AABCD 7248K] : THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRALIZED PROCESSING CELL (TDS) GHAZIABAD. ITA NOS.1944-1971/2019. :- 2 -: !' '( ) * / APPELLANT BY : MRS. MADHUSHRUTHI NEELAKANTHAN, ADVOCATE +,'( ) * /RESPONDENT BY : SHRI. A. SUNDARARAJAN, ADDL. CIT. # - ) . /DATE OF HEARING : 17-10-2019 /0&% ) . /DATE OF PRONOUNCEMENT : 17-10-2019 / O R D E R PER BENCH:- THESE ARE APPEALS FILED BY DIFFERENT ASSESSEES DIR ECTED AGAINST DIFFERENT ORDERS OF THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS)-17, CHENNAI (HEREINAFTER CALLED AS CIT(A)) DATED 14.0 5.2019 FOR THE ASSESSMENT YEARS 2013-14 (Q2), 2013-14 (Q3), 2013- 14 (Q4), 2013-14 (Q2), 2013-14 (Q3), 2014-15 (Q1), 2014-15 (Q2), 20 14-15 (Q3) 2014- 15(Q4), 2014-15 (Q1), 2014-15 (Q2), 2014-15 (Q3) 2 014-15 (Q4), 2015- 16 (Q1), 2015-16 (Q2), 2015-16 (Q3), 2015-16 (Q1), 2015-16 (Q2), 2014-15 (Q1), 2014-15 (Q2), 2014-15(Q3), 2014-15 (Q 1), 2014-15 (Q2), 2014-15(Q3), 2015-16 (Q1), 2015-16 (Q2), 2015-16 (Q 1) AND 2015-16 (Q2) RESPECTIVELY. 2. SINCE, THE IDENTICAL FACTS AND ISSUES ARE INVOLVED IN THESE APPEALS, WE PROCEED TO DISPOSE THE SAME VIDE THIS COMMON ORD ER. 3. FOR THE SAKE OF CONVENIENCE AND CLARITY THE FACTS R ELEVANT IN ITA NO.1944/CHNY/2019 FOR ASSESSMENT YEAR 2013-14 (Q2) ARE STATED HEREIN. ITA NOS.1944-1971/2019. :- 3 -: 4. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. FOR THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), CHENNAI U/S. 250 OF THE INCOME TAX A CT, 1961 IS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE AND THE PRINCIPLES OF NATURAL JUSTICE. 2. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DISMISSING THE APPEAL STATING THAT IN THE ABSENCE OF SPECIFIC REASONS FOR DELAY IN FILING THE APPEAL THE DELAY IS NOT CONDONED AND THE APPEAL IS DISMISSED AS BARRED BY L IMITATION. 3. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BY DISMISSING THE APPEAL ON LIMITATION HAS ERRED IN INDIRECTLY CONFIRMING THE ADDITION OF RS. 4,200/- U/S 234E OF THE INCOME TAX ACT. (TAX EFFECT RS. 4,200/-) 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THE FACT THAT THE PROVISI ONS OF SECTION 200A R.W.S 234E ARE APPLICABLE ONLY FROM 01.06.2015 . 5. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT CONSIDERING THE DECISION RENDERED BY T HE JURISDICTIONAL TRIBUNAL IN THE CASE OF DOLLARS & PO UNDS V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CPC TDS (ITA NOS. 2015 TO 2030/CHNY/2OI8) 6. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT CONSIDERING THE DECISION RENDERED BY T HE JURISDICTIONAL TRIBUNAL IN THE CASE OF G LNDHIRANI VS DC1T (ITA NOS 1019 TO 1021/MDS/ 2015) (2015) 60 TAXMANN.COM 312. FOR THESE GROUNDS AND SUCH OTHER GROUNDS THAT MAY B E ADDUCED BEFORE OR DURING THE HEARING OF THE APPEAL, IT IS P RAYED THAT THE HONBLE TRIBUNAL MAY BE PLEASED TO DELETE THE FEE L EVIED U/S 234E OF THE ACT AND/OR PASS SUCH OTHER ORDERS AS THIS HO NBLE TRIBUNAL MAY DEEM FIT. 5. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT NAMELY M/S. D.S.M. SOFT PVT. LTD, IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956. DURING ITA NOS.1944-1971/2019. :- 4 -: THE FINANCIAL YEAR 2012-13 (Q2) THE APPELLANT HAD DEDUCTED TAX AT SOURCE AND PAID TO THE CENTRAL GOVERNMENT. THE APPLICABLE QUARTERLY STATEMENT WAS FILED BELATEDLY ON 19.11.2014 AND IT WAS PROCES SED ON 23.11.2014 AND LEVIED LATE FEE OF RS. 7,000/- U/S. 234E OF THE INC OME TAX ACT, 1961 (IN SHORT THE ACT). 6. 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 APPEAL BEFORE US IN THE PRESENT APPEAL. 7. 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. THEREFO RE, ONE MAY AT THE FIRST BLUSH SAY THAT, SINCE S. 234E IS A CHA RGING SECTION FOR FEE, THE LIABILITY WAS GENERATED OR HAD ACCRUED, IF THERE WAS FAILURE TO DELIVER OR CAUSE TO BE DELIVERED THE STA TEMENT/S OF TDS WITHIN THE PRESCRIBED TIME. BUT, IN OUR VIEW, S. 23 4E CANNOT BE READ IN ISOLATION AND IS REQUIRED TO BE READ WITH T HE MECHANISM AND THE MODE PROVIDED FOR ITS ENFORCEMENT. AS OBSER VED BY US HEREINABOVE, WHEN S. 234E WAS INSERTED IN THE ACT SIMULTANEOUSLY, S. 271H WAS ALSO INSERTED IN THE AC T PROVIDING FOR THE PENALTY FOR FAILURE OF FURNISHING OF STATEM ENTS ETC. THEREFORE, IF THERE WAS FAILURE TO SUBMIT THE STATE MENT FOR TDS AS PER S. 234E, THE FEE PAYABLE IS PROVIDED BUT THE MECHANISM PROVIDED WAS THAT IF THERE WAS FAILURE TO FURNISH S TATEMENTS ITA NOS.1944-1971/2019. :- 5 -: WITHIN THE PRESCRIBED DATE, THE PENALTY UNDER S. 27 1H(1) AND (2) COULD BE IMPOSED. HOWEVER, UNDER SUB-S. (3) OF S 27 1H, THE 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 INTEREST THE AMOUNT IS CREDITED AND HE HAD DELIVERED OR CAUSED TO DELIVER THE STATEMENT WITHIN ONE YEAR FROM THE TIME PRESCRIBED FOR SUBMIS SION OF THE SAID STATEMENT. TO PUT IT IN OTHER WORDS, FOR FAILU RE TO SUBMIT THE STATEMENTS, THE PENALTY PROVIDED UNDER S. 271(L)(A) CANNOT BE IMPOSED IF THE DEDUCTOR COMPLIES WITH THE REQUIREME NT OF SUB-S. (3) OF S. 271H. HENCE, IT CAN BE SAID THAT THE FEE PROVIDED UNDER S, 234E WOULD TAKE OUT FROM THE RIGORS OF PENALTY U NDER S. 271H BUT OF COURSE SUBJECT TO THE OUTER LIMIT OF ONE YEA R 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 SUCH FEE WAS FOR CONFERRING THE PRIVILEGE TO THE DEFAULTER-DEDUCTOR TO COME OUT FROM THE RIGORS OF PENAL PROVISION OF S. 271H. BE IT RECORDE D THAT, PRIOR TO S. 271H OF THE ACT INSERTED IN THE STATUTE BOOK, TH E ENFORCEABILITY OF REQUIREMENT TO FILE RETURN UNDER S. 200(3) AND S. 206C(3) WAS BY VIRTUE OF S. 272A(2)(K) OF THE AC T WHICH PROVIDED FOR THE PENALTY OF RS. 100 PER DAY FOR EAC H DAY OF DEFAULT IN FILING TDS STATEMENTS. BUT, WHEN S. 234E WAS INSERTED W.E.F. 1ST JULY, 2012 SIMULTANEOUSLY, A SECOND PROV ISO WAS ADDED UNDER S. 272A(2) W.E.F. 1ST JULY, 2012 AS UND ER : '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, STAT EMENTS OR PARTICULARS MENTIONED IN S. 133 OR S. 206 OR S. 206 C 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 COPIES OF SUCH REGISTER OR OF ANY ENTRY THEREIN TO BE TAKEN; OR ITA NOS.1944-1971/2019. :- 6 -: (E) TO FURNISH THE RETURN OF INCOME WHICH HE IS REQ UIRED TO FURNISH UNDER SUB-S. (4A) OR SUB-S. (4G) OF S. 139 OR TO FURNISH IT WITHIN THE TIME ALLOWED AND IN THE MANNE R 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 (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 CONTI NUES : 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 S UB- S. (3) OF S. 200 OR THE PROVISO TO SUB-S. (3) OR UN DER SUB- S. (3A) OF S. 206C] SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CASE 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 WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTE D AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER'THE 1ST DAY OF JULY, 2012. ITA NOS.1944-1971/2019. :- 7 -: ........' 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 IMPOSED FOR TDS AFTER 1ST JULY, 2012. 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 PROVIS ION FOR SUCH FAILURE TO SUBMIT RETURN. WHEN THE PARLIAMENT HAS SIMULTANEOUSLY BROUGHT ABOUT S. 234E, S. 271H AND T HE AFORESAID PROVISO TO S. 272A(2), IT CAN BE SAID THAT, THE FEE PROVIDED UNDER S. 234E IS CONTEMPLATED TO GIVE A PRIVILEGE TO THE DEFAULTER TO COME OUT FROM THE RIGORS OF PENALTY PROVISION UNDER S. 271H(L)(A) IF HE PAYS THE FEE WITHIN ONE YEAR AND C OMPLIES WITH THE REQUIREMENT OF 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 PROVISIONS O F FEE SINCE CREATES A COUNTER BENEFIT OR RECIPROCAL BENEFIT IN FAVOUR OF THE DEFAULTER IN THE RIGORS OF THE PENAL PROVISION, THE PROVISIONS OF S. 234E WOULD MEET WITH THE TEST OF QUID 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 CO MPUTATION OF FEE AND FAILURE FOR PAYMENT OF FEE UNDER S. 200A WH ICH 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 UP ON THE AUTHORITY. IT IS TRUE THAT, A REGULATORY MECHANISM BY INSERTION OF ANY PROVISION MADE IN THE STATUTE BOOK, MAY HAVE A RETROACTIVE CHARACTER BUT, WHETHER SUCH PROVISION PROVIDES FOR A MERE REGULATORY MECHANISM OR CONFERS SUBSTANTIVE POWER U PON THE AUTHORITY WOULD ALSO FOE A ASPECT WHICH MAY BE REQU IRED 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 NATURE OR FEE INDEPENDENTLY SIMULTANEOUSLY MODE AND THE MANNER OF ITS ENFORCEABILITY IS ALSO REQUIRED TO BE CONSIDERED AN D EXAMINED. NOT ONLY THAT, BUT, IF THE MODE AND THE MANNER IS N OT EXPRESSLY PRESCRIBED, THE PROVISIONS MAY ALSO BE VULNERABLE. ALL SUCH ITA NOS.1944-1971/2019. :- 8 -: ASPECTS WILL BE REQUIRED TO BE CONSIDERED BEFORE ON E CONSIDERS REGULATORY MECHANISM OR PROVISION FOR REGULATING TH E MODE AND THE MANNER OF RECOVERY AND ITS ENFORCEABILITY AS RE TROACTIVE. IF AT THE TIME WHEN THE FEE WAS PROVIDED UNDER S. 234E, T HE PARLIAMENT ALSO PROVIDED FOR ITS UTILITY FOR GIVING PRIVILEGE UNDER S. 271H(3) THAT TOO BY EXPRESSLY PUT BAR FOR PENALT Y UNDER S. 272A BY INSERTION OF PROVISO TO S. 272A(2), IT CAN BE SAID THAT A PARTICULAR SET UP FOR IMPOSITION AND THE PAYMENT OF FEE UNDER S. 234E WAS PROVIDED BUT, IT DID NOT PROVIDE FOR MAKIN G OF DEMAND OF SUCH FEE UNDER S. 200A PAYABLE UNDER S. 234E. HE NCE, CONSIDERING THE AFORESAID PECULIAR FACTS AND CIRCUM STANCES, 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 EFFECT 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 HAVING RE TROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE DEMAND UNDER S. 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE U NDER S. 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POW ER UNDER S. 200A BY THE RESPONDENT FOR THE PERIOD OF THE RESPEC TIVE ASSESSMENT YEAR PRIOR TO 1ST JUNE, 2015. HOWEVER, W E MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FE E AFTER INTIMATION RECEIVED UNDER S. 200A, THE AFORESAID VI EW WILL NOT PERMIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNL ESS HE HAS MADE PAYMENT UNDER PROTEST. 23. IN VIEW OF THE AFORESAID OBSERVATION AND DISCUS SION, SINCE THE IMPUGNED INTIMATION GIVEN BY THE RESPONDENT-DEP ARTMENT AGAINST ALL THE APPELLANTS UNDER S. 200A ARE SO FAR AS THEY ARE FOR THE PERIOD PRIOR TO 1ST JUNE, 2015 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 APPEARS TH AT IN ALLT MATTERS, THE INTIMATION GIVEN IN PURPORTED EXERCISE 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 IN PURPO RTED EXERCISE OF POWER UNDER S. 200A, THE SAME HAS NECES SITATED THE APPELLANT-ORIGINAL PETITIONER TO CHALLENGE THE VALI DITY OF S. 234E ITA NOS.1944-1971/2019. :- 9 -: OF THE ACT. IN VIEW OF THE REASONS RECORDED BY US H EREINABOVE, WHEN THE AMENDMENT MADE UNDER S. 200A OF THE ACT WH ICH HAS COME INTO EFFECT ON 1ST JUNE, 2015 IS HELD TO BE HA VING PROSPECTIVE EFFECT, NO COMPUTATION OF FEE FOR THE D EMAND OR THE INTIMATION FOR THE FEE UNDER S. 234E COULD BE MADE FOR THE TDS DEDUCTED FOR THE RESPECTIVE ASSESSMENT YEAR PRIOR T O 1ST JUNE, 2015. HENCE, THE DEMAND NOTICES UNDER S. 200A BY TH E RESPONDENT-AUTHORITY FOR INTIMATION FOR PAYMENT OF FEE UNDER S. 234E CAN BE SAID AS WITHOUT ANY AUTHORITY OF LAW AN D THE SAME ARE QUASHED 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 NECESSIT ATED THE APPELLANT TO CHALLENGE THE CONSTITUTIONAL VALIDITY OF S. 234E. WHEN THE INTIMATION OF THE DEMAND NOTICES UNDER S. 200A IS HELD TO BE WITHOUT AUTHORITY OF LAW SO FAR AS IT RELATES TO COMPUTATION AND DEMAND OF FEE UNDER S. 234E, WE FIND THAT THE Q UESTION OF FURTHER SCRUTINY FOR TESTING THE CONSTITUTIONAL VAL IDITY OF S. 234E WOULD BE RENDERED AS AN ACADEMIC EXERCISE BECAUSE T HERE WOULD NOT BE ANY CAUSE ON THE PART OF THE PETITIONERS TO CONTINUE 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 ALSO DECLA RED THAT IF THE IMPUGNED NOTICES UNDER S. 200A ARE SET ASIDE, SO FA R AS IT RELATES TO COMPUTATION AND INTIMATION FOR PAYMENT O F FEE UNDER S. 234E, THE APPELLANT-PETITIONERS WOULD NOT PRESS THE CHALLENGE TO THE CONSTITUTIONAL VALIDITY OF S. 234E OF THE AC T. BUT, THEY SUBMITTED THAT THE QUESTION OF CONSTITUTIONAL VALID ITY OF S. 234E MAY BE KEPT OPEN TO BE CONSIDERED BY THE DIVISION B ENCH AND THE JUDGMENT OF THE LEARNED SINGLE JUDGE MAY NOT CO NCLUDE THE CONSTITUTIONAL 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 REMAIN 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.1944-1971/2019. :- 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. AC CORDING TO THE PROVISIONS OF SECTION 200A(1), NO INTIMATION CAN BE SENT U/S. 200A, AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FI NANCIAL YEAR IN WHICH THE STATEMENT IS FILED. IN THIS CASE, THE ASS ESSEE FILED THE E- TDS ON 29.06.2013, WHICH WAS PROCESSED ON 16.01.201 4. THE REVISED ORDER, IF ANY, CAN BE PASSED ON OR BEFORE 3 1.03.2015 I.E., AFTER ONE YEAR FROM 31.03.2014. IT HAS FURTHER PLEA DED THAT THE ITAT, A BENCH, CHENNAI IN ITS ORDERS IN ITA NOS. 1019, 10 20 & 1021/MDS/2015 DATED 10.07.2015 IN THE CASE OF SMT. G. INDHIRANI VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CPC-TDS, GHA ZIABAD HAS SET ASIDE THE INTIMATION U/S. 200A FOR THE REAS ON THAT PRIOR TO 01.06.2015, THERE WAS NO ENABLING PROVISION IN SECT ION 200A OF THE ACT FOR LEVY 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 ASSESSING OFFICER TO PASS A SEPARATE ORDER U/S. 234 E OF THE ACT LEVYING FEE, PROVIDED THE LIMITATION FOR SUCH A LEV Y DID NOT EXPIRE. THUS, THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THE OFFICER DATED 27.12.2016 IS BARRED BY LIMITATION. PER CONTR A, THE DR SUPPORTED THE ORDERS OF THE LD. AO AND THE LD. CIT( A). 4. WE FIND MERIT IN THE SUBMISSIONS MADE BY THE ASSESSEE. AS H ELD BY THIS ITAT, THE INTIMATION SENT TO THE ASSESSEE U/S. 200A DATED 16.01.2014 RAISING THE DEMAND OF RS. 9,000/- U/S. 2 34E TOWARDS LEVY OF LATE FILING FEE IS INVALID AS THERE WAS NO ENABL ING PROVISION 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 STA TEMENT OF TAX DEDUCTED AT SOURCE. IT WAS OPEN FOR THE AO TO PASS SEPARATE ORDER U/S. 234E LEVYING THE FEE, PROVIDED THE LIMITATION FOR SUCH A LEVY DID NOT EXPIRE. HOWEVER, IN THIS CASE, THE AO HAS NOT P ASSED 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.1945 TO 1961/CHNY/2019 OF M/S. D.S.M. SOFT PVT. LTD AND ITA NOS.1962 TO 1971/CHNY/2019 OF M/S.DSC BPO P VT LTD 8 . SINCE, THE FACTS IN THE PRESENT APPEALS ARE IDENT ICAL TO THE FACTS IN ITA NO.1944/CHNY/2019, FOR THE REASONS MENTIONED TH EREIN, WE ALLOW THE APPEALS FILED BY THE ASSESSEE ON THE ABOVE LINES IN DICATED IN APPEAL ITA ITA NOS.1944-1971/2019. :- 11 -: NO.1944/CHNY/2019 SUPRA. HENCE, THE ABOVE CAPTIONED APPEALS FILED BY THE ASSESSEES ARE ALLOWED. 9 . IN THE RESULT, THE APPEALS FILED BY THE ASSESSEES IN ITA NOS. 1944 TO 1971/CHNY/2019 STAND ALLOWED. ORDER PRONOUNCED ON 17TH DAY OF OCTOBER, 2019, AT CHENNAI. SD/- SD/- ( . ) (DUVVURU RL REDDY) /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER 1 #- / CHENNAI 2# / DATED: 17TH OCTOBER, 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