Sai Bhargav Nath Infra, Pune V. Deputy Commissioner of Income-tax,

ITA 2189/PUN/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6941 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 21-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANKET S BORA
• Keywords: Recovery proceedings; Retrospective amendment; Right to appeal
• Section: 6; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , . . , $ BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NO.2189/PUN/2016 & & / ASSESSMENT YEAR : 2013-14 SAI BHARGAV NATH INFRA, OFFICE NO.3, BHARGAV HOUSE, SINHAGAD ROAD,TALUKA HAVELI, PUNE-411051 PAN : ACBFS9830R . / APPELLANT VS. DCIT(CPC)-TDS, GHAZIABAD . / RESPONDENT / APPELLANT BY : SHRI SANKET S. BORA / RESPONDENT BY : SHRI SUHAS KULKARNI / ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF C IT(A)-10, PUNE RELATING TO ASSESSMENT YEAR 2013-14 AGAINST INTIMATION ISSUED U NDER SECTION 200A(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL : 1. THE LD.CIT(A)-10, PUNE ERRED ON FACTS AND IN LA W : A. THAT THE ORDER PASSED U/SEC.234E IS NOT APPEALAB LE AND MAINTAINABLE WITHOUT CONSIDERING THE FACTS THAT THE INTIMATION/O RDER ISSUED BY DCIT(CPC)-TDS ARE U/SEC.200A AND WHICH ARE APPEALAB LE U/SEC.246A(1)(A) OF THE INCOME TAX ACT, 1961. / DATE OF HEARING :15.03.2017 / DATE OF PRONOUNCEMENT: 17.03.2017 2 B. THAT THE PROVISION OF THE FEES PAYABLE U/SEC.234 E PRIOR TO AMENDMENT TO SEC.200A(1)(C) VIDE FINANCE ACT, 2015 WAS W.E.F. 01-06-2015. 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE PRESENT APPEAL IS FILED AFTER A DELAY OF 10 DAYS AND FILED CONDONATION APPLICATION IN THIS REGARD SUPPORTED BY A AFFIDAVIT WHEREIN IT HAS BEEN STATED THAT DUE TO THE ILLNESS AND HOSPITALIZATION OF THE BROTH ER OF THE ACCOUNTANT THE CHALLAN OF FILING FEES WHICH WAS PAID ON 12-09-2016 COULD NOT BE HANDED OVER AND HENCE THE DELAY. THE ASSESSEE HAD RECEIVED THE ORDER OF CIT( A) ON 13-07-2016 AND THE APPEAL WAS TO BE FILED BY 12-09-2016. HOWEVER, THE PRESENT APPEAL IS FILED ON 21- 09-2016 AFTER A DELAY OF 10 DAYS. THE EXPLANATION OFFERED BY THE ASSESSEE JUSTIFIES THE DELAY AND IN VIEW THEREOF WE CONDONE THE DELAY OF 10 DAYS AND PROCEED TO DECIDE THE PRESENT APPEAL. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE AS SESSEE AT THE OUTSET POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT AP PEAL IS SQUARELY COVERED BY THE EARLIER ORDER OF TRIBUNAL IN THE CASE OF MAHARASHTR A CRICKET ASSOCIATION VS. DCIT (CPC)-TDS, GHAZIABAD AND OTHERS, WITH LEAD ORDER IN ITA NOS.560/PN/2016 & 561/PN/2016, 1018/PN/2016 TO 1023/PN/2016 RELATING TO ASSESSMENT YEARS 2013- 14 AND 2014-15. 5. THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST INTIMATION ISSUED BY THE ASSESSING OFFICER UNDER SECTION 200A OF THE ACT FOR 3 RD QUARTER (26Q), WHEREIN FEES PAYABLE UNDER SECTION 234E OF THE ACT HAVE BEE N CHARGED BY THE ASSESSING OFFICER. THE LEGISLATURE HAD INSERTED CLAUSE (C) T O SECTION 200A(1) OF THE ACT SPECIFICALLY W.E.F. 01.06.2015 AND THE CASE OF ASSE SSEE BEFORE US WAS THAT IN SUCH CIRCUMSTANCES WHERE THE SAID AMENDMENT WAS INTRODUC ED W.E.F. 01.06.2015 AND THERE WAS NOTHING TO SUGGEST THAT THE SAID AMENDMEN T WAS CLARIFICATORY OR RETROSPECTIVE IN NATURE, THEN NO SUCH LATE FEES COU LD BE CHARGED UNDER SECTION 234E OF THE ACT IN RESPECT OF TDS STATEMENTS WHICH WERE FILED PRIOR TO 01.06.2015. 3 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL I.E. AGAINST LEVY OF FEES UNDER SECTION 234E OF THE ACT WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT AROSE BEFORE THE TRIBUNAL IN BUNCH OF APPEALS. THE TRIBUNAL VIDE ORDER DATED 21 .09.2016 WITH LEAD ORDER IN ITA NOS.560/PN/2016 & 561/PN/2016, 1018/PN/2016 TO 1023 /PN/2016 IN MAHARASHTRA CRICKET ASSOCIATION VS. DCIT (CPC)-TDS, GHAZIABAD, RELATING TO ASSESSMENT YEARS 2013-14 AND 2014-15 FOR THE RESPECTIVE QUARTE RS DELIBERATED UPON THE ISSUE AND HELD AS UNDER:- 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. THE ISSUE ARISING IN THIS BUNCH OF APPEALS IS AGAINST LEVY OF FEES UNDER SECTION 234E OF THE ACT. IN ORDER TO ADJUDICATE THE ISSUE, FIRST REFER ENCE IS BEING MADE TO THE RELEVANT PROVISIONS OF THE ACT. UNDER CHAPTER XVII HEADED COLLECTION AND RECOVERY OF TAXES AND UNDER CLAUSE B, DEDUCTION AT SOURCE, T HE STATUTE LAYS DOWN THE DUTY OF THE PAYER OF CERTAIN AMOUNTS TO DEDUCT TAX AT SOURC E UNDER SECTIONS 192 TO 194LD, 195 TO 196D OF THE ACT. UNDER SECTION 198 OF THE A CT, IT IS PROVIDED THAT THE TAX DEDUCTED AT SOURCE SHALL FOR THE PURPOSE OF COMPUTI NG THE INCOME OF ASSESSEE BE DEEMED TO BE INCOME RECEIVED. UNDER SECTION 199 OF THE ACT, IT IS FURTHER PROVIDED THAT ANY DEDUCTION MADE IN ACCORDANCE WITH THE PROV ISIONS OF CHAPTER AND PAID TO THE CENTRAL GOVERNMENT SHALL BE TREATED AS PAYMENT OF TAX ON BEHALF OF THE PERSON FROM WHOSE INCOME THE DEDUCTION WAS MADE. THE SUM REFERRED TO IN SUB-SECTION (1A) OF SECTION 192 OF THE ACT AND PAID TO THE CENT RAL GOVERNMENT SHALL BE TREATED AS THE TAX PAID ON BEHALF OF THE PERSON IN RESPECT OF WHOSE INCOME SUCH PAYMENT OF TAX HAS BEEN MADE. 17. SECTION 200 OF THE ACT LAYS DOWN THE DUTY OF TH E PERSON DEDUCTING TAX, WHICH READS AS UNDER:- 200. (1) ANY PERSON DEDUCTING ANY SUM IN ACCORDANCE WIT H THE FOREGOING PROVISIONS OF THIS CHAPTER SHALL PAY WITHIN THE PRE SCRIBED TIME, THE SUM SO DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. (2) ANY PERSON BEING AN EMPLOYER, REFERRED TO IN SU B-SECTION (1A) OF SECTION 192 SHALL PAY, WITHIN THE PRESCRIBED TIME, THE TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. (2A) IN CASE OF AN OFFICE OF THE GOVERNMENT, WHERE THE SUM DEDUCTED IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CH APTER OR TAX REFERRED TO IN SUB-SECTION(1A) OF SECTION 192 HAS BEEN PAID TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHOUT THE PRODUCTION OF A CHALLAN, THE PAY AND ACCOUNTS OFFICER OR THE TREASURY OFFICER OR THE CHEQUE DRAWI NG AND DISBURSING OFFICER OR ANY OTHER PERSON, BY WHATEVER NAME CALLE D, WHO IS RESPONSIBLE FOR CREDITING SUCH SUM OR TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT, SHALL DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME-TAX AUTHORITY, OR TO THE PERSON AUTHORISED BY SUCH AUTHORITY, A STATEMEN T IN SUCH FORM, VERIFIED IN SUCH MANNER, SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PRESCRIBED. (3) ANY PERSON DEDUCTING ANY SUM ON OR AFTER THE 1S T DAY OF APRIL, 2005 IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CH APTER OR, AS THE CASE MAY BE, ANY PERSON BEING AN EMPLOYER REFERRED TO IN SUB-SECTION (1A) OF SECTION 192 SHALL, AFTER PAYING THE TAX DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME, PREP ARE SUCH STATEMENTS FOR SUCH PERIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME-TAX AUTHORITY OR THE PERSO N AUTHORISED BY SUCH 4 AUTHORITY SUCH STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PRESCRIBED: PROVIDED THAT THE PERSON MAY ALSO DELIVER TO THE PRESCRIBED AUTHORITY A CORRECTION STATEMENT FOR RECTIFICATION OF ANY MISTA KE OR TO ADD, DELETE OR UPDATE THE INFORMATION FURNISHED IN THE STATEMENT D ELIVERED UNDER THIS SUB- SECTION IN SUCH FORM AND VERIFIED IN SUCH MANNER AS MAY BE SPECIFIED BY THE AUTHORITY. 18. UNDER SECTION 200(1) OF THE ACT, IT IS PROVIDED THAT ANY PERSON DEDUCTING ANY SUM IN ACCORDANCE WITH THE PROVISIONS OF THE CH APTER SHALL PAY WITHIN THE PRESCRIBED TIME, THE SUM SO DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. UNDER SECTION 200(2) OF THE ACT , ANY PERSON BEING AN EMPLOYER, AS REFERRED TO IN SUB-SECTION (1A) OF SECTION 192 O F THE ACT SHALL PAY, WITHIN THE PRESCRIBED TIME, THE TAX TO THE CREDIT OF THE CENTR AL GOVERNMENT OR AS THE BOARD DIRECTS. UNDER SUB-SECTION (2A) OF THE ACT, IT IS PROVIDED THAT WHERE THE SUM HAS BEEN DEDUCTED IN ACCORDANCE WITH FOREGOING PROVISIO NS OF THE CHAPTER, BY THE OFFICE OF THE GOVERNMENT, THEN DUTY IS UPON THE TRE ASURY OFFICER OR THE DRAWING & DISBURSING OFFICER OR ANY OTHER PERSON, TO DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME TAX AUTHORITIES, OR TO THE PERSON AUTHORIZED BY SUCH AUTHORITY, STATEMENT IN SUCH FORM, VERIFIED IN SUCH MANNER, SE TTING FORTH SUCH PARTICULARS WITHIN SUCH TIME AS MAY BE PRESCRIBED. UNDER SECTI ON 200(3) OF THE ACT, SIMILAR RESPONSIBILITY IS ON ANY PERSON DEDUCTING ANY SUM O N OR AFTER FIRST DAY OF APRIL, 2005 IN ACCORDANCE WITH FOREGOING PROVISIONS OF THE CHAPTER, INCLUDING ANY PERSON AS AN EMPLOYER REFERRED TO IN SECTION 192(1A) OF TH E ACT. THE ONUS IS UPON SUCH PERSON THAT HE SHALL AFTER PAYING THE TAX TO THE CR EDIT OF CENTRAL GOVERNMENT WITHIN PRESCRIBED TIME, PREPARE SUCH STATEMENT FOR SUCH PE RIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME TAX AUTHORITY OR ANY PERSON SO AUTHORIZED, SUCH STATEMENT IN SUCH FORM A ND VERIFIED IN SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PROVIDED. THE DUTY IS UPON A PERSON DEDUCTING ANY SUM IN ACCORDAN CE WITH VARIOUS PROVISIONS UNDER THE CHAPTER AND ALSO UPON AN EMPLOYER WHO IS MAKING DEDUCTION OUT OF THE PAYMENTS MADE TO THE EMPLOYEES, THEN SUB-SECTION (3 ) REQUIRES THAT THE DEDUCTOR IS TO PREPARE A STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED, WHICH IS TO BE DELIVERED TO THE PRESCRIBED AUTHORITY, IN SUCH FORM AND VERIFIED AND SETTING FORTH SUCH PARTICULARS AS MAY BE PRESCRIBED. THE SAID ST ATEMENT IS TO BE DELIVERED WITHIN SUCH TIME AS MAY BE PRESCRIBED. 19. RULE 31A OF THE INCOME TAX RULES, 1962 (IN SHOR T THE RULES) PROVIDES THAT EVERY PERSON WHO IS RESPONSIBLE FOR DEDUCTION OF TA X UNDER CHAPTER XVIIB SHALL IN ACCORDANCE WITH THE PROVISIONS OF SECTION 200(3) OF THE ACT, DELIVER OR CAUSE TO BE DELIVERED, THE QUARTERLY STATEMENTS TO THE DIRECTOR GENERAL OF INCOME TAX (SYSTEMS) OR THE PERSONS AUTHORIZED BY THEM I.E. IN RESPECT OF DEDUCTIONS UNDER VARIOUS PROVISIONS OF THE CHAPTER XVIIB. THE RULE FURTHER PROVIDES THAT THE STATEMENTS REFERRED TO IN SUB-RULE (1) ARE TO BE DE LIVERED QUARTERLY AND THE STIPULATED PERIOD OF DUE DATE OF FILING THE SAID ST ATEMENT IN RESPECT OF DEDUCTOR BEING AN OFFICE OF THE GOVERNMENT AND THE DEDUCTOR BEING OTHER THAN GOVERNMENT, ARE PROVIDED. THE SUB-RULE (3) OF RULE 31A OF THE RULES FURTHER PROVIDES THAT THE STATEMENT REFERRED TO IN SUB-RULE (1) MAY BE FURNIS HED IN ANY OF THE FOLLOWING MANNERS I.E. BY WAY OF FURNISHING THE STATEMENT IN PAPER FORM OR FURNISHING THE STATEMENT ELECTRONICALLY UNDER DIGITAL SIGNATURE OR AFTER VERIFICATION. INITIALLY, SUCH STATEMENT HAD TO BE FURNISHED IN PAPER FORM AND LAT ER BY WAY OF AMENDMENT, THE PROCEDURE FOR FURNISHING THE STATEMENT ELECTRONICAL LY WAS PROVIDED. ONCE THE STATEMENT HAS BEEN SO SUBMITTED BY THE DEDUCTOR OF TAX DEDUCTED AT SOURCE, THEN PROCESSING OF STATEMENT IS AS PER THE PROVISIONS OF SECTION 200A OF THE ACT. THE SAID SECTION WAS INSERTED BY THE FINANCE (NO.2) ACT , 2009 W.E.F. 01.04.2010. THE SAID SECTION 200A OF THE ACT READS AS UNDER:- 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE O R A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDUCTING ANY S UM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH S TATEMENT SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY: 5 (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL B E COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMAT ION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DU E TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMP UTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 20 0 AND SECTION 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED A ND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PU RSUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR : PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YE AR IN WHICH THE STATEMENT IS FILED. EXPLANATION.FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHA LL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE STATEMENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOUR CE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS AC T. (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE T AX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE S AID SUB-SECTION. 20. SECTION 200A OF THE ACT LAYS DOWN THE MANNER IN WHICH THE STATEMENTS OF TAX DEDUCTED AT SOURCE ARE TO BE PROCESSED FOR ISSU ING THE INTIMATION. FIRST OF ALL, THE SUMS DEDUCTIBLE UNDER THE CHAPTER ARE TO BE COM PUTED AND INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF SUCH SUMS DEDUCTI BLE AS COMPUTED IN THE STATEMENTS AS PER CLAUSE (A) AND (B) UNDER SECTION 200A(1) OF THE ACT. CLAUSES (C) TO (F) REPRODUCED ABOVE WERE SUBSTITUTED FOR CLAUSE S (C) TO (E) BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. PRIOR TO THE SUBSTITUTION, CLAUSES (C) TO (E) READ AS UNDER:- (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DU E TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMP UTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 20 0 AND SECTION 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR. 21. AS PER NEWLY SUBSTITUTED CLAUSE (C) W.E.F. 01.0 6.2015, THE FEES, IF ANY, IS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SE CTION 234E OF THE ACT. HOWEVER, UNDER THE EARLIER CLAUSE (C), THERE WAS NO SUCH PROVISION. 22. SECTION 234E(1) OF THE ACT PROVIDES THAT WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED, A STATEMENT WITHIN TIME PRES CRIBED IN SECTION 200(3) OF THE ACT OR THE PROVISO TO SECTION 206C(3) OF THE ACT, H E SHALL BE LIABLE TO PAY, BY WAY OF FEES, SUM OF RS.200/- FOR EVERY DAY DURING WHICH TH E FAILURE CONTINUES. THE SAID PROVISIONS WERE INSERTED BY THE FINANCE ACT, 2012 W .E.F. 01.07.2012. UNDER SUB- SECTION (2), IT IS FURTHER PROVIDED THAT THE AMOUNT OF FEES REFERRED TO IN SUB-SECTION 6 (1) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE O R COLLECTABLE, AS THE CASE MAY BE. SUB-SECTION (3) FURTHER LAYS DOWN THAT THE AMO UNT OF FEES REFERRED TO IN SUB- SECTION (1) SHALL BE PAID BEFORE DELIVERING OR CAUS ING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SUB-SECTION 200(3) OF THE ACT OR TH E PROVISO TO SECTION 206C(3) OF THE ACT. THE PROVISIONS OF SAID SECTION HAVE BEEN MADE APPLICABLE TO A STATEMENT TO BE DELIVERED OR CAUSE TO BE DELIVERED ON OR AFTE R THE FIRST DAY OF JULY, 2012. 23. READING THE ABOVE SAID PROVISIONS OF THE ACT, I T TRANSPIRES THAT WHERE TAX HAS BEEN DEDUCTED AT SOURCE BY A DEDUCTOR OUT OF TH E ACCOUNT OF DEDUCTEE, THEN THE ONUS IS UPON THE DEDUCTOR UNDER SECTION 200 OF THE ACT TO PREPARE A STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MANNER WHICH IS P RESCRIBED UNDER THE ACT IN WHICH THE PARTICULARS OF TAX DEDUCTION AT SOURCE AR E TO BE PROVIDED AND THE SAID STATEMENT IS TO BE DELIVERED OR CAUSE TO BE DELIVER ED WITHIN SUCH TIME AS MAY BE PRESCRIBED. RULE 31A OF THE RULES PROVIDED THE TIM E LIMIT FOR THE FURNISHING OF STATEMENT FOR TAX DEDUCTION AT SOURCE ON QUARTERLY BASIS. SECTION 234E OF THE ACT LEVIES FEES FOR DEFAULT IN FURNISHING THE STATEMENT S OF TAX DEDUCTED AT SOURCE. SUCH FEES IS TO BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SECTION 200(3) OF THE ACT OR PROVIS O TO SECTION 206C(3) OF THE ACT. IN OTHER WORDS, IN CASE THE ASSESSEE HAS DEFAULTED IN NOT DELIVERING THE STATEMENT OR CAUSING TO DELIVER THE STATEMENT WITHIN TIME PRE SCRIBED, THEN HE IS LIABLE TO PAY THE FEES WHICH IS SO PRESCRIBED UNDER THE ACT AND S UCH FEES SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTABLE AT SOURCE B UT THE SAME HAS TO BE PAID ALONG WITH STATEMENT WHICH IS TO BE DELIVERED UNDER THE P ROVISIONS OF SECTION 200(3) OF THE ACT. THOUGH THE STATEMENT OF TAX DEDUCTED AT S OURCE HAS TO BE FURNISHED BY THE DEDUCTOR, NO DOUBT, UNDER SECTION 200 OF THE AC T, BUT THE SAME HAS TO BE PROCESSED BY THE PRESCRIBED AUTHORITY AS PER PROVIS IONS OF SECTION 200A OF THE ACT. IN CASE THERE IS ANY VARIATION IN THE TAX, SUM DEDU CTIBLE UNDER THE CHAPTER AND / OR THEIR PAYMENT, THE ASSESSING OFFICER IS EMPOWERED T O MAKE ADJUSTMENTS IN THIS REGARD AND ALSO REJECT INCORRECT CLAIM MADE BY THE DEDUCTOR WHICH IS APPARENT FROM THE INFORMATION IN THE STATEMENT FILED BY THE DEDUC TOR. FURTHER, THE INCOME-TAX AUTHORITY IS AUTHORIZED TO CHARGE INTEREST, IF ANY, AND THE SAME SHALL BE COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE IN ADDITION TO THE AMOUNT OF TAX DEDUCTED AT SOURCE, WHICH IS TO BE PAID TO THE ACCOUNT OF TREAS URY BY THE DEDUCTOR. IN CASE OF ANY DEFAULT, INTEREST IS TO BE CHARGED AGAINST SUCH DEDUCTOR AND THE SAME IS TO BE COMPUTED AS PER PROVISIONS OF SECTION 200A(1)(B) OF THE ACT. FURTHER, IN ADDITION TO BOTH THESE AMOUNTS, CLAUSE (C) TO SECTION 200A OF T HE ACT PROVIDES FEES TO BE LEVIED WHICH SHALL BE COMPUTED IN ACCORDANCE WITH T HE PROVISIONS OF SECTION 234E OF THE ACT. THE SAID PROVISION TO CHARGE FEES BY T HE PRESCRIBED AUTHORITY HAS BEEN SUBSTITUTED FOR EARLIER PROVISIONS BY THE FINANCE A CT, 2015 W.E.F. 01.06.2015. PRIOR TO THE SAID SUBSTITUTION THOUGH THE PROVISIONS OF S ECTION 234E OF THE ACT FOR PAYMENT OF FEES FOR DEFAULT IN FURNISHING THE STATE MENT WERE INSERTED BY THE FINANCE ACT, 2012 W.E.F. 01.07.2012, THE PRESCRIBED AUTHORITY DID NOT HAVE THE POWER TO CHARGE THE SAID FEES, WHILE PROCESSING THE QUARTERLY STATEMENTS / RETURNS UNDER SECTION 200A OF THE ACT. 24. NOW, LOOKING AT VARIOUS PROVISIONS OF THE ACT, THE ISSUE NEEDS TO BE ADJUDICATED IN THE CASE OF ASSESSEE, WHEREIN ADMITT EDLY, TDS RETURNS WHICH WERE DEEMED TO BE FILED BY THE ASSESSEE WERE FILED AFTER DELAY AND THE QUESTION WAS WHETHER THE ASSESSING OFFICER WHICH PROCESSING THE INTIMATION UNDER SECTION 200A OF THE ACT COULD CHARGE LATE FEE UNDER THE PROVISIO NS OF SECTION 234E OF THE ACT. THE ASSESSEE CLAIMS THAT THE ASSESSING OFFICER AT B EST COULD CHARGE THE DIFFERENCE IN TAX DEDUCTED AND NOT PAID IN TREASURY FROM THE D EDUCTOR AND / OR ANY INTEREST PAYABLE ON SUCH DEDUCTION OF TAX AT SOURCE. HOWEVE R, TILL SUBSTITUTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FINANCE ACT, 2 015 W.E.F. 01.06.2015, THE ASSESSING OFFICER WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. THE CASE OF REVENUE ON THE OTHER HAND, WAS TH AT IT WAS THE DUTY OF DEDUCTOR WHILE FURNISHING THE STATEMENT UNDER SECTION 200(3) OF THE ACT TO DEPOSIT THE FEES REFERRED TO IN SECTION 234E(1) OF THE ACT. THE LEA RNED CIT-DR STRESSED THAT FEES REFERRED TO IN SUB-SECTION (1) HAD TO BE PAID WHILE DELIVERING OR CAUSING TO DELIVER THE STATEMENT IN ACCORDANCE WITH PROVISIONS OF SECT ION 200(3) OF THE ACT OR THE PROVISO TO SECTION 206C(3) OF THE ACT. HOWEVER, VA RIOUS REGULATIONS AND THE 7 STATUTORY PROVISIONS IN THIS REGARD POINT OUT THAT UNDOUBTEDLY, THE RESPONSIBILITY OF THE DEDUCTOR WAS TO DEPOSIT THE TAX DEDUCTED AT SOU RCE IN TIME AND IF NOT SO, THEN WITH INTEREST AND CONSEQUENTLY, WHERE THE TAX WAS N OT PAID IN TIME AND INTEREST WAS NOT PAID IN TIME AND THEN, WHERE THE STATEMENT OF T AX DEDUCTED AT SOURCE COULD NOT BE FILED BEFORE THE PRESCRIBED AUTHORITY WITHIN STI PULATED TIME, THE ASSESSEE WAS LIABLE TO LEVY OF FEES UNDER SECTION 234E OF THE AC T. HOWEVER, IN CASE ANY DEFAULT OCCURS DUE TO THE NON-PAYMENT OF FEES BY THE ASSESS EE IN THIS REGARD, THEN THE PROVISIONS WHICH HAS TO BE CONSIDERED IS SECTION 20 0A(1)(C) OF THE ACT. THE POWER TO CHARGE / COLLECT FEES AS PER PROVISIONS OF SECTI ON 234E OF THE ACT WAS VESTED WITH THE PRESCRIBED AUTHORITY UNDER THE ACT ONLY ON SUBSTITUTION OF EARLIER CLAUSE (C) TO SECTION 200A OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. ONCE ANY PROVISION OF THE ACT HAS BEEN MADE APPLICABLE FROM A RESPECTIVE DATE, THEN THE REQUIREMENT OF THE STATUTE IS TO APPLY THE SAID PRO VISIONS FROM THE SAID DATE. 25. IN RESPECT OF THE ISSUE RAISED BEFORE US, IT IS CLEAR THAT THE PRESCRIBED AUTHORITY HAS BEEN VESTED WITH THE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT ONLY WITH REGARD TO LEVY OF FEES BY THE SUBSTIT UTION MADE BY FINANCE (NO.2) ACT, 2015 W.E.F. 01.06.2015. ONCE THE POWER HAS BEEN GI VEN, UNDER WHICH ANY LEVY HAS TO BE IMPOSED UPON TAX PAYER, THEN SUCH POWER C OMES INTO EFFECT FROM THE DATE OF SUBSTITUTION AND CANNOT BE APPLIED RETROSPE CTIVELY. THE SAID EXERCISE OF POWER HAS BEEN PROVIDED BY THE STATUTE TO BE FROM 0 1.06.2015 AND HENCE, IS TO BE APPLIED PROSPECTIVELY. THERE IS NO MERIT IN THE CL AIM OF REVENUE THAT EVEN WITHOUT INSERTION OF CLAUSE (C) UNDER SECTION 200A(1) OF TH E ACT, IT WAS INCUMBENT UPON THE ASSESSEE TO PAY FEES, IN CASE THERE IS DEFAULT IN F URNISHING THE STATEMENT OF TAX DEDUCTED AT SOURCE. ADMITTEDLY, THE ONUS WAS UPON THE ASSESSEE TO PREPARE STATEMENTS AND DELIVER THE SAME WITHIN PRESCRIBED T IME BEFORE THE PRESCRIBED AUTHORITY, BUT THE POWER TO COLLECT THE FEES BY THE PRESCRIBED AUTHORITY VESTED IN SUCH AUTHORITY ONLY BY WAY OF SUBSTITUTION OF CLAUS E (C) TO SECTION 200A(1) OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. PRIOR TO SAID 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. BEFORE EXERCISING THE AUTHORITY OF CHARGING ANY SUM FROM ANY DEDUCTOR OR THE ASSESSEE, THE PRESCRIBED AUTHORITY SHOULD HAVE NECESSARY POWER VESTED IN IT AND BEFORE VESTING OF SUCH POWER, NO ORDER CAN BE PASSED BY THE PRESCRIBED AUTHORITY IN CHARGING OF SUCH FEES UNDER SECTION 234E OF THE ACT, WHILE EXERCISING JURISDICT ION UNDER SECTION 200A OF THE ACT. THUS, IN THE ABSENCE OF ENABLING PROVISIONS, UNDER WHICH THE PRESCRIBED AUTHORITY IS EMPOWERED TO CHARGE THE FEES, THE ASSESSING OFFI CER WHILE PROCESSING THE RETURNS FILED BY THE DEDUCTOR IN RESPECT OF TAX DED UCTED AT SOURCE CAN RAISE THE DEMAND ON ACCOUNT OF TAXES, IF ANY, NOT DEPOSITED A ND CHARGE INTEREST. HOWEVER, PRIOR TO 01.06.2015, THE ASSESSING OFFICER DOES NOT HAVE THE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT WHILE PROCESSING TDS RETURNS. IN THE ABSENCE OF ENABLING PROVISIONS, LEVY OF FEES COULD NOT BE EFFE CTED IN THE COURSE OF INTIMATION ISSUED UNDER SECTION 200A OF THE ACT PRIOR TO 01.06 .2015. 26. THE AMRITSAR BENCH OF TRIBUNAL IN SIBIA HEALTHC ARE (P) LTD. VS. DCIT (2015) 121 DTR 81 (ASR) (TRIB) HAD HELD THAT THE AD JUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E OF THE ACT WAS INDEED BEYON D THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A OF THE ACT. SUCH A LEVY COULD NOT BE EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A OF THE ACT AND IN THE ABSENCE OF ANY OTHER PROVISIONS ENABLING THE DEMAND IN RESPECT OF THIS LEVY HAVING BEEN POINTED OUT, NO SUCH LEVY COULD BE EFFECTED. THE SAID PROPOSITION HAS BEEN APPLIED IN VARIOUS DECISIONS OF DIFFERENT BENCHES O F TRIBUNAL. REFERENCE WAS MADE TO THE DECISIONS OF CHENNAI BENCH OF TRIBUNAL IN G. INDIRANI VS. DCIT (SUPRA), AHMEDABAD BENCH OF TRIBUNAL IN M/S. GLOBE ECOLOGIST ICS LTD. VS. DCIT IN ITA NOS.2689-2691/AHD/2015, ITA NO.2692/AHD/2015, RELAT ING TO ASSESSMENT YEAR 2014-15, ITA NO.2693/AHD/2015, RELATING TO ASSESSME NT YEAR 2013-14 AND ITA NOS.2694-2695/AHD/2014, RELATING TO ASSESSMENT YEAR 2013-14, VIDE CONSOLIDATED ORDER DATED 26.11.2015 AND CHANDIGARH BENCH OF TRIB UNAL IN M/S. KHANNA WATCHES LTD. VS. DCIT IN ITA NOS.731 TO 735/CHD/201 5, RELATING TO ASSESSMENT YEARS 2014-15 & 2013-14, ORDER DATED 29.10.2015. 8 27. WHILE DECIDING THE PRESENT BUNCH OF APPEALS, TH E REVENUE HAD PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE BOMB AY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) WHEREIN, THE CO NSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT WAS CHALLENGED. THE HONBLE HIGH C OURT NOTED THE FACT THAT WHERE THE DEDUCTOR WAS REQUIRED TO FURNISH PERIODICAL QUA RTERLY STATEMENTS CONTAINING THE DETAILS OF DEDUCTION OF TAX MADE DURING THE QUARTER , BY THE PRESCRIBED DUE DATE AND THE DELAY IN FURNISHING SUCH TDS RETURNS WOULD HAVE CASCADING EFFECT. IT WAS FURTHER OBSERVED BY THE HONBLE HIGH COURT THAT UND ER THE INCOME-TAX ACT, WHERE THERE IS AN OBLIGATION ON THE INCOME-TAX DEPARTMENT TO PROCESS THE INCOME-TAX RETURNS WITHIN SPECIFIED PERIOD FROM THE DATE OF FI LING, THE RETURNS COULD NOT BE ACCURATELY PROCESSED OF SUCH PERSON ON WHOSE BEHALF TAX HAS BEEN DEDUCTED I.E. DEDUCTEE, UNTIL INFORMATION OF SUCH DEDUCTIONS IS F URNISHED BY THE DEDUCTOR WITHIN THE PRESCRIBED TIME. SINCE THE SUBSTANTIAL NUMBER OF DEDUCTORS WERE NOT FILING THEIR TDS RETURNS / STATEMENTS WITHIN PRESCRIBED TIME FRA ME, THEN IT LEAD TO AN ADDITIONAL WORK BURDEN UPON THE DEPARTMENT DUE TO THE FAULT OF THE DEDUCTOR AND IN THIS LIGHT AND TO COMPENSATE FOR ADDITIONAL WORK BURDEN FORCED UPON THE DEPARTMENT, FEES WAS SOUGHT TO BE LEVIED UNDER SECTION 234E OF THE A CT. THE HONBLE HIGH COURT HELD THAT LOOKING AT THIS FROM THIS PERSPECTIVE, SE CTION 234E OF THE ACT WAS NOT PUNITIVE IN NATURE BUT A FEE WHICH WAS A FIXED CHAR GE FOR THE EXTRA SERVICE WHICH THE DEPARTMENT HAD TO PROVIDE DUE TO THE LATE FILING OF TDS STATEMENTS. IT WAS FURTHER HELD BY THE HONBLE HIGH COURT THAT LATE FILING OF TDS RETURNS / STATEMENTS WAS REGULARIZED BY PAYMENT OF FEES AS SET OUT IN SECTIO N 234E OF THE ACT. THEREFORE, THE FINDINGS OF HONBLE HIGH COURT WERE THUS, THAT THE FEES SOUGHT TO BE LEVIED UNDER SECTION 234E OF THE ACT WAS NOT IN THE GUISE OF TAX SOUGHT TO BE LEVIED ON THE DEDUCTOR. THE PROVISIONS OF SECTION 234E OF THE AC T WERE HELD TO BE NOT ONEROUS ON THE GROUND THAT SECTION DOES NOT EMPOWER THE ASS ESSING OFFICER TO CONDONE THE DELAY IN LATE FILING THE INCOME TAX RETURNS OR THAT NO APPEAL IS PROVIDED FROM ARBITRARY ORDER PASSED UNDER SECTION 234E OF THE AC T. THE HONBLE HIGH COURT HELD THAT THE RIGHT TO APPEAL WAS NOT A MATTER OF RIGHT BUT WAS CREATURE OF STATUTE AND IF THE LEGISLATURE DEEMS FIT NOT TO PROVIDE REMEDY OF APPEAL, SO BE IT. THE HONBLE HIGH COURT FURTHER HELD THAT A PERSON CAN ALWAYS AP PROACH THE COURT IN EXTRAORDINARY EQUITABLE JURISDICTION UNDER ARTICLE 226/227 OF THE CONSTITUTION AS THE CASE MAY BE. THE HONBLE HIGH COURT THEREFORE, OBS ERVED THAT SIMPLY BECAUSE NO REMEDY OF APPEAL WAS PROVIDED FOR THE PROVISIONS OF SECTION 234E OF THE ACT, THE SAME CANNOT BE SAID TO BE ONEROUS AND SECTION 234E OF THE ACT WAS HELD TO BE CONSTITUTIONALLY VALID. THE CONSTITUTIONAL VALIDIT Y OF PROVISIONS OF SECTION 234E OF THE ACT HAS ALSO BEEN UPHELD BY THE HONBLE RAJASTHAN H IGH COURT IN M/S. DUNDLOD SHIKSHAN SANSTHAN & ANR. VS. UNION OF INDIA AND ORS (SUPRA). 28. IN VIEW OF THE ABOVE SAID RATIO LAID DOWN BY TH E HONBLE BOMBAY HIGH COURT, THE CASE OF THE LEARNED CIT-DR BEFORE US WAS THAT THERE IS NO MERIT IN THE PRESENT SET OF APPEALS FILED BY THE ASSESSEE AS THE HONBLE HIGH COURT HAS LAID DOWN THAT NO APPEAL IS PROVIDED FROM AN ORDER PASSE D UNDER SECTION 234E OF THE ACT AND THE SAME MERITS TO BE DISMISSED AT THE OUTS ET. IN THIS REGARD, HE HAS RAISED TWO ISSUES THAT (A) THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE AND ALSO (B) THERE IS NO MERIT IN THE CLAIM OF THE ASSE SSEE THAT THE ASSESSING OFFICER IS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT BEFORE INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FIN ANCE ACT, 2015 W.E.F. 01.06.2015. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSES SEE ON THE OTHER HAND, DREW OUR ATTENTION TO THE MEMORANDUM TO THE FINANCE BILL , 2015 WHILE INTRODUCING THE SAID CLAUSE (C) TO SECTION 200A(1) OF THE ACT. THE FINANCE BILL TOOK NOTE OF THE PROVISIONS OF CHAPTER XVIIB, UNDER WHICH THE PERSON DEDUCTING TAX I.E. DEDUCTOR WAS REQUIRED TO FILE QUARTERLY TAX DEDUCTION AT SOU RCE STATEMENT CONTAINING THE DETAILS OF DEDUCTION OF TAX MADE DURING THE QUARTER BY THE PRESCRIBED DUE DATES. SIMILAR RESPONSIBILITY IS ON A PERSON REQUIRED TO C OLLECT TAX OF CERTAIN SPECIFIED RECEIPTS UNDER SECTION 206C OF THE ACT. IN ORDER T O PROVIDE EFFECTIVE DETERRENCE AGAINST THE DELAY IN FURNISHING TDS / TCS STATEMENT S, THE FINANCE ACT, 2012 INSERTED SECTION 234E OF THE ACT TO PROVIDE FOR LEV Y OF FEES ON LATE FURNISHING OF TDS / TCS STATEMENTS. THE MEMO FURTHER TOOK NOTE O F THE FACT THAT THE FINANCE (NO.2) ACT, 2009 INSERTED SECTION 200A IN THE ACT, WHICH PROVIDED FOR FURNISHING OF TDS STATEMENTS FOR DETERMINING THE AMOUNT PAYABLE O R REFUNDABLE TO THE DEDUCTOR. IT FURTHER TOOK NOTE THAT HOWEVER, AS SECTION 234E OF THE ACT WAS INSERTED AFTER THE 9 INSERTION OF SECTION 200A IN THE ACT, THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT DOES NOT PROVIDE FOR DETERMINATION OF FEES PAYA BLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS. I T WAS THUS, PROPOSED TO AMEND THE PROVISIONS OF SECTION 200A OF THE ACT SO AS TO ENABLE THE COMPUTATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME O F PROCESSING OF TDS STATEMENTS UNDER SECTION 200A OF THE ACT. THE MEMO EXPLAINING THE FINANCE BILL, 2015 VERY CATEGORICALLY HELD THAT CURRENTLY THERE DOES NOT EX IST ANY PROVISION IN THE ACT TO ENABLE THE PROCESSING OF TCS RETURNS AND HENCE, A P ROPOSAL WAS MADE TO INSERT A PROVISION IN THIS REGARD AND ALSO THE POST PROVISIO N SHALL INCORPORATE THE MECHANISM FOR COMPUTATION OF FEES PAYABLE UNDER SEC TION 234E OF THE ACT. THE FINANCE BILL FURTHER REFERS TO THE EXISTING PROVISI ONS OF THE ACT I.E. AFTER PROCESSING OF TDS STATEMENT, INTIMATION IS GENERATED SPECIFYIN G THE AMOUNT PAYABLE OR REFUNDABLE. THIS INTIMATION GENERATED AFTER PROCES SING OF TDS STATEMENT IS (I) SUBJECT TO RECTIFICATION UNDER SECTION 154 OF THE A CT; (II) APPEALABLE UNDER SECTION 246A OF THE ACT; AND (III) DEEMED AS NOTICE OF PAYM ENT UNDER SECTION 156 OF THE ACT. THE FINANCE BILL FURTHER PROVIDED THAT INTIMA TION GENERATED AFTER THE PROPOSED PROCESSING OF TCS STATEMENT SHALL BE AT PAR WITH TH E INTIMATION GENERATED AFTER PROCESSING OF TDS STATEMENT AND ALSO PROVIDED THAT FAILURE TO PAY TAX SPECIFIED IN THE INTIMATION SHALL ATTRACT LEVY OF INTEREST AS PE R PROVISIONS OF SECTION 220(2) OF THE ACT. FURTHER, AMENDMENTS WERE ALSO MADE IN RESPECT OF THE SCHEME OF PAYMENT OF TDS / TCS BY THE GOVERNMENT, DEDUCTOR / COLLECTOR W HICH ARE NOT RELEVANT FOR DECIDING THE ISSUE IN THE PRESENT APPEAL AND HENCE, THE SAME ARE NOT BEING REFERRED TO. THE FINANCE BILL FURTHER PROVIDED THA T THE AMENDMENT WOULD TAKE EFFECT FROM 01.06.2015. 29. THE PERUSAL OF MEMO EXPLAINING THE PROVISION RE LATING TO INSERTION OF CLAUSE (C) TO SECTION 200A OF THE ACT CLARIFIES THE INTENT ION OF LEGISLATURE IN INSERTING THE SAID PROVISION. THE PROVISIONS OF SECTION 234E OF THE ACT WERE INSERTED BY THE FINANCE ACT, 2012, UNDER WHICH THE PROVISION WAS MA DE FOR LEVY OF FEES FOR LATE FURNISHING TDS / TCS STATEMENTS. BEFORE INSERTION OF SECTION 234E OF THE ACT, THE FINANCE (NO.2) ACT, 2009 HAD INSERTED SECTION 200A IN THE ACT, UNDER THE SAID SECTION, MECHANISM WAS PROVIDED FOR PROCESSING OF T DS STATEMENTS FOR DETERMINING THE AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR, UNDER WHICH THE PROVISION WAS ALSO MADE FOR CHARGING OF INTEREST. HOWEVER, SINCE THE PROVISIONS OF SECTION 234E OF THE ACT WERE NOT ON STATUTE WHEN TH E FINANCE (NO.2) ACT, 2009 WAS PASSED, NO PROVISION WAS MADE FOR DETERMINING T HE FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING T HE TDS STATEMENTS. SO, WHEN SECTION 234E OF THE ACT WAS INTRODUCED, IT PROVIDED THAT THE PERSON WAS RESPONSIBLE FOR FURNISHING THE TDS RETURNS / STATEM ENTS WITHIN STIPULATED PERIOD AND IN DEFAULT, FEES WOULD BE CHARGED ON SUCH PERSON. THE SAID SECTION ITSELF PROVIDED THAT FEES SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCT ED AT SOURCE OR COLLECTED AT SOURCE. IT WAS FURTHER PROVIDED THAT THE PERSON RE SPONSIBLE FOR FURNISHING THE STATEMENTS SHALL PAY THE SAID AMOUNT WHILE FURNISHI NG THE STATEMENTS UNDER SECTION 200(3) OF THE ACT. HOWEVER, POWER ENABLING THE ASS ESSING OFFICER TO CHARGE / LEVY THE FEE UNDER SECTION 234E OF THE ACT WHILE PROCESS ING THE TDS RETURNS / STATEMENTS FILED BY A PERSON DID NOT EXIST WHEN SEC TION 234E OF THE ACT WAS INSERTED BY THE FINANCE ACT, 2012. THE POWER TO CH ARGE FEES UNDER THE PROVISIONS OF SECTION 234E OF THE ACT WHILE PROCESSING THE TDS STATEMENTS, WAS DWELLED UPON BY THE LEGISLATURE BY WAY OF INSERTION OF CLAUSE (C ) TO SECTION 200A(1) OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. ACCORDING LY, WE HOLD THAT WHERE THE ASSESSING OFFICER HAS PROCESSED THE TDS STATEMENTS FILED BY THE DEDUCTOR, WHICH ADMITTEDLY, WERE FILED BELATEDLY BUT BEFORE INSERTI ON OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT W.E.F. 01.06.2015, THEN IN SUCH CASES, T HE ASSESSING OFFICER IS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS RETURNS FILED BY THE DEDUCTOR. 30. THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUN DALIA VS. UNION OF INDIA (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 ABR EAST OF THE APPLICABILITY OF THE SAID SECTION 234E OF THE ACT BY THE ASSESSING OFFIC ER WHILE PROCESSING TDS STATEMENT FILED BY THE DEDUCTOR PRIOR TO 01.06.2015 . IN SUCH SCENARIO, WE FIND NO MERIT IN THE PLEA OF LEARNED CIT-DR THAT THE HONBL E BOMBAY HIGH COURT IN 10 RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) HAS LAID DOWN THE PROPOSITION THAT FEES 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 SECTION 200A OF THE ACT PRIOR TO 01.06.2015. 31. ANOTHER ASPECT OF THE ISSUE IS WHETHER THE AMEN DMENT BROUGHT IN BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015 BY WAY OF INSER TION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT IS CLARIFICATORY OR IS PROSPECTI VE IN NATURE AND IS NOT APPLICABLE TO THE PENDING ASSESSMENTS. UNDOUBTEDLY, THE PROVISIO NS OF SECTION 234E OF THE ACT WERE INSERTED BY THE FINANCE ACT, 2012, UNDER WHICH THE LIABILITY WAS IMPOSED UPON THE DEDUCTOR IN SUCH CASES WHERE TDS STATEMENT S / RETURNS WERE FILED BELATEDLY TO PAY THE FEES AS PER SAID SECTION. HOW EVER, IN CASES, WHERE THE ASSESSEE HAS FAILED TO DEPOSIT THE SAID FEES, THEN IN ORDER TO ENABLE THE ASSESSING OFFICER TO COLLECT THE SAID FEES CHARGEABLE UNDER S ECTION 234E OF THE ACT, IT IS INCUMBENT UPON THE LEGISLATURE TO PROVIDE MECHANISM FOR THE ASSESSING OFFICER TO CHARGE AND COLLECT SUCH FEES. IN THE ABSENCE OF EN ABLING PROVISIONS, THE ASSESSING OFFICER WHILE PROCESSING THE TDS STATEMENTS, EVEN I F THE SAID STATEMENTS ARE BELATED, IS NOT EMPOWERED TO CHARGE THE FEES UNDER SECTION 234E OF THE ACT. THE AMENDMENT WAS BROUGHT IN BY THE FINANCE ACT, 2015 W .E.F. 01.06.2015 AND SUCH AN AMENDMENT WHERE EMPOWERMENT IS GIVEN TO THE ASSE SSING OFFICER TO LEVY OR CHARGE THE FEES CANNOT BE SAID TO BE CLARIFICATORY IN NATURE AND HENCE, APPLICABLE FOR PENDING ASSESSMENTS. 32. THE HONBLE SUPREME COURT IN CIT VS. VATIKA TOW NSHIP PVT. LTD. (SUPRA) HAS EXPLAINED THE GENERAL PRINCIPLE CONCERNING RETR OSPECTIVITY AND HAVE HELD THAT OF THE VARIOUS RULES GUIDING HOW A LEGISLATION HAS TO BE INTERPRETED, ONE ESTABLISHED RULE IS THAT UNLESS CONTRARY INTENTION APPEARS, A LEGISLATION IS PRESUMED NOT TO BE INTENDED TO HAVE A RETROSPECTIVE OPERATIO N. IDEA BEHIND THE RULE IS THAT CURRENT LAW SHOULD GOVERN CURRENT ACTIVITIES. THE MEMO EXPLAINING THE FINANCE BILL, 2015 VERY CLEARLY ALSO RECOGNIZES THAT AND RE FERS TO THE CURRENT PROVISIONS OF SUB-SECTION (3) TO SECTION 200 OF THE ACT, UNDER WH ICH THE DEDUCTOR IS TO FURNISH TDS STATEMENTS. HOWEVER, AS SECTION 234E OF THE AC T WAS INSERTED AFTER INSERTION OF SECTION 200A IN THE ACT, THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT DID NOT PROVIDE FOR DETERMINATION OF FEES PAYABLE UNDER SEC TION 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS. IN THIS REGARD, I T WAS THUS, PROPOSED TO AMEND THE PROVISIONS OF SECTION 200A OF THE ACT SO AS TO ENABLE THE COMPUTATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME O F PROCESSING OF TDS STATEMENTS UNDER SECTION 200A OF THE ACT. IN OTHER WORDS, THE ASSESSING OFFICER IS EMPOWERED TO CHARGE FEES PAYABLE UNDER SECTION 234E OF THE AC T IN THE INTIMATION ISSUED AFTER INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE A CT W.E.F. 01.06.2015. THE LEGISLATURE ITSELF RECOGNIZED THAT UNDER THE EXISTI NG PROVISIONS OF SECTION 200A OF THE ACT I.E. PRIOR TO 01.06.2015, THE ASSESSING OFF ICER AT THE TIME OF PROCESSING THE TDS STATEMENTS DID NOT HAVE POWER TO CHARGE FEES UN DER SECTION 234E OF THE ACT AND IN ORDER TO COVER UP THAT, THE AMENDMENT WAS MA DE BY WAY OF INSERTION OF CLAUSE (C) TO SECTION 200A OF THE ACT. IN SUCH SCE NARIO, IT CANNOT BE SAID THAT INSERTION MADE BY SECTION 200A(1)(C) OF THE ACT IS RETROSPECTIVE IN NATURE, WHERE THE LEGISLATURE WAS AWARE THAT THE FEES COULD BE CH ARGED UNDER SECTION 234E OF THE ACT AS PER FINANCE ACT, 2012 AND ALSO THE PROVI SIONS OF SECTION 200A OF THE ACT WERE INSERTED BY FINANCE (NO.2) ACT, 2009, UNDER WH ICH THE MACHINERY WAS PROVIDED FOR THE ASSESSING OFFICER TO PROCESS THE T DS STATEMENTS FILED BY THE ASSESSEE. THE INSERTION CATEGORICALLY BEING MADE W .E.F. 01.06.2015 LAYS DOWN THAT THE SAID AMENDMENT IS PROSPECTIVE IN NATURE AND CAN NOT BE APPLIED TO PROCESSING OF TDS RETURNS / STATEMENTS PRIOR TO 01.06.2015. 33. WE FURTHER FIND THAT IN RECENT JUDGMENT DATED 2 6.08.2016, THE HONBLE KARNATAKA HIGH COURT IN WRIT APPEAL NOS.2663-2674/2 015(T-IT) & ORS IN SRI FATHERAJ SINGHVI & ORS VS. UNION OF INDIA & ORS HAS QUASHED THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT LEVYING THE FEES FOR DELAYED FILING THE TDS STATEMENTS UNDER SECTION 234E OF THE ACT. THE HON BLE HIGH COURT NOTES THAT THE FINANCE ACT, 2015 HAD MADE AMENDMENTS TO SECTION 20 0A OF THE ACT ENABLING THE ASSESSING OFFICER TO MAKE ADJUSTMENTS WHILE LEVYING FEES UNDER SECTION 234E OF THE ACT WAS APPLICABLE W.E.F. 01.06.2015 AND HAS HE LD THAT IT HAS PROSPECTIVE 11 EFFECT. ACCORDINGLY, THE HONBLE HIGH COURT HELD T HAT INTIMATION RAISING DEMAND PRIOR TO 01.06.2015 UNDER SECTION 200A OF THE ACT L EVYING SECTION 234E OF THE ACT LATE FEES IS NOT VALID. HOWEVER, THE HONBLE HIGH COURT KEPT OPEN THE ISSUE ON CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT. WE HAVE ALREADY REFERRED TO THE DECISION OF HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (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, THE ASSES SING OFFICER WHILE PROCESSING THE TDS STATEMENTS / RETURNS IN THE 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, THE INTIMATION ISSUED BY THE ASSESSING OFFIC ER UNDER SECTION 200A OF THE ACT IN ALL THESE APPEALS DOES NOT STAND AND THE DEM AND 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 BEYO ND THE SCOPE OF ADJUSTMENT PROVIDED UNDER SECTION 200A OF THE ACT AND SUCH ADJ USTMENT COULD NOT STAND IN THE EYE OF LAW. 35. BEFORE PARTING WE MAY REFER TO RELIANCE PLACED UPON BY THE LEARNED CIT-DR ON THE RATIO LAID DOWN BY CHENNAI BENCH OF TRIBUNAL IN G. INDIRANI VS. DCIT (SUPRA) ON ANOTHER ASPECT WHEREIN IT WAS HELD THAT BEFORE 01.06.2015, WHETHER THE ASSESSING OFFICER HAD AUTHORITY TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEES FOR DELAY IN FILING THE TDS STATEM ENTS UNDER SECTION 200(3) OF THE ACT; THE TRIBUNAL HELD YES THAT THE ASSESSING AUT HORITY HAD SUCH POWER AND AFTER 01.06.2015, THE ASSESSING OFFICER WAS WITHIN HIS LI MIT TO LEVY FEES UNDER SECTION 234E OF THE ACT EVEN WHILE PROCESSING THE TDS STATE MENTS UNDER SECTION 200A OF THE ACT. IN VIEW OF THE PRESENT SET OF FACTS, WHER E THE ASSESSING OFFICER HAD CHARGED FEES UNDER SECTION 234E OF THE ACT WHILE PR OCESSING THE STATEMENTS UNDER SECTION 200A OF THE ACT BEFORE 01.06.2015, THERE IS NO MERIT IN THE RELIANCE PLACED UPON BY THE LEARNED CIT-DR ON THE SAID PROPOSITION LAID DOWN BY THE CHENNAI BENCH OF TRIBUNAL AND WE DISMISS THE SAME. 36. ANOTHER RELIANCE PLACED UPON BY THE LEARNED CIT -DR WAS IN RESPECT OF AMENDMENT BEING RETROSPECTIVE OR PROSPECTIVE AND RE LIANCE WAS PLACED ON THE RATIO LAID DOWN BY HONBLE DELHI HIGH COURT IN CIT VS. NARESH KUMAR (SUPRA). HOWEVER, IN VIEW OF OUR DECISION IN THE PARAS HEREI NABOVE, WHERE POWER IS BEING ENSHRINED UPON THE ASSESSING OFFICER TO LEVY OR CHA RGE WHILE PROCESSING THE TDS RETURNS W.E.F. 01.06.2015, SUCH PROVISION CANNOT HA VE RETROSPECTIVE EFFECT AS IT WOULD BE DETRIMENTAL TO THE CASE OF TAX PAYER. THE HONBLE DELHI HIGH COURT WAS CONSIDERING THE APPLICATION OF AMENDMENT TO SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 2010, UNDER WHICH CERTAIN RELAXATIONS WERE GIVEN TO THE APPLICATION OF SAID SECTION AND IT WAS HELD THAT THE SAME APPLIES RETROSPECTIVELY TO EARLIER YEARS. HOWEVER, IN THE PRESENT SET OF APPEALS, THE ISSUE I S AGAINST THE PROVISION UNDER WHICH A NEW ENABLING POWER IS BEING GIVEN TO CHARGE FEES UNDER SECTION 234E OF THE ACT WHILE PROCESSING TDS RETURNS / STATEMENTS A ND SUCH POWER IS TO BE APPLIED PROSPECTIVELY. IN ANY CASE, THE PARLIAMENT ITSELF HAS RECOGNIZED ITS OPERATION TO BE PROSPECTIVE IN NATURE WHILE INTRODUCING CLAUSE (C) TO SECTION 200A(1) OF THE ACT AND HENCE, CANNOT BE APPLIED RETROSPECTIVELY. SIMILARL Y, RELIANCE PLACED UPON BY THE LEARNED CIT-DR ON THE RATIO LAID DOWN BY THE HONBL E SUPREME COURT IN GOVINDDAS VS. ITO (SUPRA) IS MISPLACED BECAUSE OF THE DISTING UISHABLE FACTS AND ISSUES. 7. THE ISSUE ARISING IN THE PRESENT APPEAL IS IDENT ICAL TO THE ISSUE BEFORE THE TRIBUNAL IN BUNCH OF APPEALS AND WHERE THE AMENDMEN T TO SECTION 200A(1) OF THE ACT IS PROCEDURAL IN NATURE, THEN THE ASSESSING OFF ICER WHILE PROCESSING THE TDS STATEMENT / RETURN FOR 3 RD QUARTER FOR THE PERIOD PRIOR TO 01.06.2015, WAS NO T 12 EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. ACCORDINGLY, INTIMATION ISSUED BY THE ASSESSING OFFICER UNDER SECTION 200A OF THE ACT DOES NOT STAND AND THE DEMAND RAISED BY CHARGING THE FEES UNDER SECTIO N 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. THE GROUNDS OF APPEAL RAI SED BY THE ASSESSEE ARE THUS, ALLOWED. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON THIS 17 TH DAY OF MARCH, 2017 SD/- SD/- ( R.K. PANDA ) ( SUSHMA CHOWLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER IQ.KS PUNE ; DATED : 17 TH MARCH, 2017. LRH'K ( )+, -, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. CIT (A) - 10, PUNE / CONCERNED CIT(A) 4. 5. 6. CIT, (TDS), PUNE / CONCERNED CIT ' %%&, &, / DR, ITAT, A PUNE; + / GUARD FILE. / BY ORDER, ' % // TRUE COPY // / ASSISTANT REGISTRAR, & , / ITAT, PUNE